GITC Head Agreement - purchasing.tas.gov.au€¦ · Web view(a)where subclause 4.1(a) applies,...

Government Information Technology Conditions Version 2TABLE OF CONTENTS

Clause Description PageNumber Number

PART ONE - INTERPRETATION PROVISIONS...........................................................................................3

1. Interpretations................................................................................................................................. 3

PART TWO - AGREEMENT BETWEEN THE CONTRACT AUTHORITY AND THE CONTRACTOR........11

2. Term of Agreement........................................................................................................................ 11

3. List of Products and Services......................................................................................................11

4. Prices, Licence Fees and Charges for Products and Services.................................................11

5. Bundled Offerings which include Third Party Items...................................................................12

6. Warranty as to Prices, Licence Fees and Charges.....................................................................12

7. Base Cost Variation....................................................................................................................... 12

8. Discount Variation......................................................................................................................... 13

9. Formation of Contracts................................................................................................................. 13

10. Customer's Functional Specifications.........................................................................................14

11. Contractor's Specifications..........................................................................................................14

12. Additional Items............................................................................................................................. 15

13. No Assurance of Orders...............................................................................................................15

14. Contractor to Deal with Customers under this Agreement........................................................15

15. Customer May Enforce Agreement..............................................................................................15

16. Minimum Insurance Requirements..............................................................................................15

17. Restrictions on Dealings with certain Agencies.........................................................................16

18. Use of Approved Agents...............................................................................................................16

19. Confidentiality and Disclosure of Information............................................................................16

20. Credit Card Facility........................................................................................................................ 17

21. Applicable Standards.................................................................................................................... 17

22. Condition as to Disclosure by Contractor...................................................................................17

23. Termination of this Agreement.....................................................................................................17

24. Termination of Contract Not to Affect Agreement......................................................................17

25. Variation of Agreement................................................................................................................. 17

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26. Compliance with Laws.................................................................................................................. 18

27. Severability.................................................................................................................................... 18

28. Industry Development Obligations..............................................................................................18

29. Quality Compliance....................................................................................................................... 18

30. Performance Guarantee (Contract Authority).............................................................................18

31. Unconditional Financial Undertaking (Contract Authority).......................................................18

32. Limitation of Liability..................................................................................................................... 18

33. Applicable Law.............................................................................................................................. 19

34. Assignment and Novation............................................................................................................19

35. Waiver............................................................................................................................................. 19

36. Entire Agreement........................................................................................................................... 19

37. Government Taxes, Duties and Charges.....................................................................................19

38. Notices (Contract Authority and Contractor)..............................................................................19

39. Cost Recovery Fee........................................................................................................................ 19

PART THREE - STANDARD PROVISIONS OF CONTRACT BETWEEN A CUSTOMER AND THE CONTRACTOR............................................................................................................................... 22

40. Provisions of Agreement to apply to the Contract.....................................................................22

41. Delivery and Installation...............................................................................................................22

42. Payment.......................................................................................................................................... 22

43. Sales Tax and Import Duty............................................................................................................23

44. Price Variations Under a Contract - Hardware Products............................................................23

45. Price Variations Under a Contract - Other Products and Services...........................................23

46. Travel Expenses............................................................................................................................ 24

47. Unconditional Financial Undertaking (Customer)......................................................................24

48. Performance Guarantee (Customer)............................................................................................24

49. Customer Insurance Requirements.............................................................................................24

50. Escrow of Source Code................................................................................................................25

51. Conduct of the Contract................................................................................................................25

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52. Customer's Obligations - Processing Environment and Customer Data.................................26

53. Customers Obligations - Site Conditions....................................................................................26

54. Customer Supplied Items (CSI)....................................................................................................26

55. Acceptance Testing (Product)......................................................................................................27

56. Intellectual Property Rights in Contract Material........................................................................30

57. Intellectual Property Rights in Tools, Object Libraries and Methodologies.............................31

58. Contractor's Personnel................................................................................................................. 31

59. Specified Personnel...................................................................................................................... 32

60. Sub-Contracting............................................................................................................................ 32

61. Site Specification and Site Preparation.......................................................................................32

62. Access to Site................................................................................................................................ 33

63. Access to Contractor's Premises.................................................................................................33

64. Documentation.............................................................................................................................. 33

65. Training.......................................................................................................................................... 34

66. Indemnity........................................................................................................................................ 34

67. Intellectual Property Rights Issues..............................................................................................34

68 Liability........................................................................................................................................... 35

69. Liquidated Damages...................................................................................................................... 36

70. Money Recoverable by the Customer..........................................................................................36

71. Conflict of Interest......................................................................................................................... 36

72. Negation of Employment and Agency.........................................................................................37

73. Extension of Time.......................................................................................................................... 37

74. Secrecy and Security.................................................................................................................... 37

75. Variation of the Contract...............................................................................................................37

76. Project, Implementation and Payment Plan................................................................................38

77. Staged Implementation and Right to Terminate.........................................................................38

78. Termination for Breach by Contractor.........................................................................................38

79. Consequences of Termination Pursuant to Clause 78...............................................................39

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80. Termination for Breach by Customer..........................................................................................39

81. Termination or Suspension with Compensation........................................................................39

82. Dispute Resolution........................................................................................................................ 39

83. Notices (Customer and Contractor).............................................................................................40

84. Additional Conditions................................................................................................................... 40

84A. Intentionally not used.................................................................................................................... 40

84B Goods and Services Tax...............................................................................................................40

84C Confidentiality................................................................................................................................ 41

84D Zero Tolerance Towards Violence Against Women....................................................................42

PART FOUR - HARDWARE ACQUISITION AND INSTALLATION MODULE............................................44

85. Provision of Products................................................................................................................... 44

86. Product Warranty........................................................................................................................... 44

87. Continued Product Availability....................................................................................................44

88. Title and Risk................................................................................................................................. 44

PART FIVE - HARDWARE MAINTENANCE MODULE..............................................................................46

89. Provision of Hardware Maintenance Service..............................................................................46

90. Standard of Maintenance Service................................................................................................46

91. Preventive Maintenance................................................................................................................46

92. Remedial Maintenance.................................................................................................................. 46

93. Warranty - Hardware Maintenance Service.................................................................................47

94. Charges - Hardware Maintenance Service................................................................................47

95. Basic Maintenance Period............................................................................................................47

96. Hardware and System Availability...............................................................................................48

97. Failure to Achieve Hardware and System Availability Standard...............................................49

98. Spares, Test Equipment and Diagnostic Routines.....................................................................49

99. Engineering Changes.................................................................................................................... 50

100. Hazardous Conditions................................................................................................................... 50

101. Modification or Attachment of Additional Equipment................................................................50

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102. Movement of Hardware................................................................................................................. 51

103. Maintenance Records.................................................................................................................... 51

104. Variation of Hardware.................................................................................................................... 51

PART SIX - SOFTWARE LICENSING MODULE.........................................................................................53

105. Grant of Licence............................................................................................................................ 53

106. Period of Licence........................................................................................................................... 53

107. Supply of Licensed Software........................................................................................................53

108. Product Warranty (Licensed Software)........................................................................................53

109. Software Services and Support Services....................................................................................54

110. Protection and Security of Licensed Software...........................................................................54

111. Termination and Conversion of Licence.....................................................................................54

112. Termination on Notice................................................................................................................... 55

113. Consequences of Termination.....................................................................................................55

PART SEVEN - IT CONSULTANCY MODULE............................................................................................57

114. Provision of Consultancy Service................................................................................................57

PART EIGHT - SOFTWARE DEVELOPMENT AND MODIFICATION MODULE........................................59

115. Contractor to Supply Deliverables including Developed Software...........................................59

116. Developed Software Specifications.............................................................................................59

117. New and Updated Facilities..........................................................................................................59

118. Existing Software Modification....................................................................................................59

119. Developed Software Detailed Design Specification...................................................................59

120. Methodology for Software Development Procedures and Documentation..............................59

121. Developed Software Warranty......................................................................................................60

122. Support Services........................................................................................................................... 60

123. Source Code.................................................................................................................................. 61

PART NINE - SOFTWARE SUPPORT MODULE........................................................................................63

124. Support Service............................................................................................................................. 63

125. Warranty (Software Support)........................................................................................................63

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126. Updates and New Releases..........................................................................................................63

127. Documentation and Training (Updates and New Releases)......................................................64

128. Termination on Notice................................................................................................................... 64

129. Consequences of Termination.....................................................................................................64

PART TEN - SYSTEMS INTEGRATION MODULE......................................................................................66

130. Supply and Integration of System................................................................................................66

131. Contractor as Agent...................................................................................................................... 66

132 Contractor Supplied Equipment (CSE)........................................................................................66

133. Maintenance of Customer Supplied Items (CSI).........................................................................66

134. Warranty (The System).................................................................................................................. 66

135. Acceptance Testing (The System)...............................................................................................67

PART ELEVEN - DATA CONVERSION AND MIGRATION MODULE........................................................71

136. Data Conversion and Migration Services....................................................................................71

PART TWELVE - PACKAGED SOFTWARE LICENSING MODULE..........................................................73

137. Licence........................................................................................................................................... 73

138. Period of Licence........................................................................................................................... 73

139. Supply of Packaged Software......................................................................................................74

140. Supply of Packaged Software through Distributors and Dealers..............................................74

141. Product Warranty (Packaged Software)......................................................................................74

142. Software Services and Support Services....................................................................................75

143. Protection and Security of Packaged Software..........................................................................75

144. Specified Operating Environment................................................................................................75

PART THIRTEEN - FACILITIES MANAGEMENT SERVICES MODULE....................................................77

145. Provision of Facilities Management Services.............................................................................77

146. Level of Service............................................................................................................................. 77

147. Service Period................................................................................................................................ 77

148. Variation of Configuration............................................................................................................77

149. Review Procedures........................................................................................................................ 77

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150. Service Performance Factors.......................................................................................................78

151. Management of Support Services................................................................................................78

152. System Availability under Facilities Management Services......................................................78

153. System Downtime.......................................................................................................................... 78

154. Customer Responsibilities...........................................................................................................79

155. Rebates and Reimbursements.....................................................................................................79

156. Problem Escalation Procedure.....................................................................................................79

PART FOURTEEN - ACCESS SERVICES MODULE..................................................................................81

157. Provision of Access Services.......................................................................................................81

SCHEDULE 1................................................................................................................................................. 84AGREEMENT DETAILS................................................................................................................................. 84

SCHEDULE 2................................................................................................................................................. 86PRODUCT AND SERVICE DETAILS............................................................................................................86

SCHEDULE 3................................................................................................................................................. 89INFORMATION TO BE CONSIDERED WHEN PREPARING AN OFFICIAL ORDER...................................89

SCHEDULE 4................................................................................................................................................. 99PROJECT, IMPLEMENTATION AND PAYMENT PLAN................................................................................99

SCHEDULE 5............................................................................................................................................... 103LIST OF CUSTOMER SUPPLIED ITEMS (CSI)..........................................................................................103

SCHEDULE 6............................................................................................................................................... 104LIST OF DELIVERABLES............................................................................................................................ 104

SCHEDULE 7............................................................................................................................................... 105LIST OF CUSTOMER SUPPLIED ITEMS TO BE ACQUIRED BY CONTRACTOR AS AGENT.................105

SCHEDULE 8............................................................................................................................................... 106LIST OF CONTRACTOR SUPPLIED EQUIPMENT AND PRICES..............................................................106

SCHEDULE 9............................................................................................................................................... 108ACCEPTANCE TESTS FOR THE SYSTEM................................................................................................108

SCHEDULE 10............................................................................................................................................. 109DEED OF CONFIDENTIALITY.................................................................................................................... 109

SCHEDULE 11............................................................................................................................................. 113UNCONDITIONAL FINANCIAL UNDERTAKING.........................................................................................113

SCHEDULE 12............................................................................................................................................. 114PERFORMANCE GUARANTEE.................................................................................................................. 114

SCHEDULE 13............................................................................................................................................. 116

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ESCROW AGREEMENT............................................................................................................................. 116

SCHEDULE 14............................................................................................................................................. 125SPECIFIED SUB-CONTRACTORS.............................................................................................................125

SCHEDULE 15............................................................................................................................................. 126STATUTORY DECLARATION BY SUB-CONTRACTOR.............................................................................126

SCHEDULE 16............................................................................................................................................. 127FACILITIES MANAGEMENT SERVICE PLAN............................................................................................127

SCHEDULE 17............................................................................................................................................. 128CONFIDENTIAL PROVISIONS.................................................................................................................... 128

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Government Information Technology Conditions Version 2DEED OF AGREEMENT

DEED OF AGREEMENT

This Deed of Agreement is made the day of 201 .

BETWEEN:

The Crown in Right of the State of Tasmania (in this document referred toas “the Crown”) of the one part

AND

the registered office of whichis situated at(in this document referred to as "the Contractor") of the other part

WHEREAS:

1. The Crown wishes to establish term arrangements for the supply by the Contractor of Products and Services to a Customer in accordance with the terms and conditions of this Agreement.

2. A Customer may wish to be supplied with Products and Services and the Contractor has agreed that when a Customer places an Official Order in accordance with this Agreement, the Contractor will supply the Products and Services.

NOW THE PARTIES AGREE:

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Government Information Technology Conditions Version 2PART ONE - Interpretation Provisions

PART ONE

InterpretationProvisions

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PART ONE - INTERPRETATION PROVISIONS

1. Interpretations

1.1 In this Agreement and in a Contract, unless the contrary intention appears:

"Acceptance Tests" means the tests referred to in clause 55;

"Acceptance Criteria" means the standards and tests (if any) that shall be applied by the Delegate in determining whether to accept the Product or Service, which criteria are set out in the Official Order;

"Acceptance Test Data" means the data to be prepared in accordance with subclauses 55.5 to 55.8 or subclauses 135.3 to 135.6 as the case may be;

"Acceptance Testing Period" means the period determined in accordance with subclause 55.16 or the Project, Implementation and Payment Plan, as the case may be, over which Acceptance Tests are carried out;

"Access Date" means the date set out in the Official Order being the date from which the Contractor is to be given access to the Site for the purpose of performing its obligations under a Contract;

“Access Services” means the provision of an electronic portal or node with information resources and associated content as specified in the Official Order

"Accounting Period" means the period from the first to the last day (inclusive) of a Month;

"Actual Acceptance Date" ("AAD"), means the date on which the Delegate issues a Certificate of Acceptance in respect of the Product, or where subclause 55.4 applies, the date which is two (2) Normal Working Days after the date on which the Product is received by the Customer;

"Additional Conditions" means the conditions described as such in clause 84;

"Agency" means:

(a) a body corporate or an unincorporated body established or constituted for a public purpose by Commonwealth, State or Territory legislation, or an instrument made under that legislation (including a local authority);

(b) a body established by the Governor-General, a State Governor, or by a Minister of State of the Commonwealth, a State or a Territory; or

(c) an incorporated company over which the Commonwealth, a State or a Territory exercises control;

"Agreement" means all the Parts of this Deed of Agreement between “the Crown” and the Contractor and includes the Schedules to this Deed of Agreement, the number of which Agreement is specified in item 3 of Schedule 1 and is set out in the Official Order;

"Austel" means the Australian Telecommunications Authority constituted by the Telecommunications Act 1991 (Commonwealth) or its successor regulatory body;

"Base Cost" means the price, licence fee or charge for a Product or Service established pursuant to clause 4;

"Basic Maintenance Period" means the period described as such in clause 95;

"Certificate of Acceptance" means the certificate issued to the Contractor by the Delegate specifying the Product or System or part thereof which has been accepted by the Customer in accordance with a Contract;

"Charge" means the charge payable for the Service in accordance with clause 4 provided by the Contractor including any cost recovery fee payable pursuant to clause 39;

"Common Use Contracts" means the term contractual arrangement administered by the Contract Authority or any other contract authority of the Commonwealth, a State or Territory;

"Comprehensive Maintenance Service (CMS)" means the service provided under a Contract that consists of a combination of Remedial Maintenance and Preventive Maintenance;

“Confidential Information” means in relation to a Party, information that:

(a) is by its nature confidential;

(b) is designated by that Party as confidential; or

(c) the other Party knows or ought to know is confidential;

and includes:

(d) information comprised in or relating to any Intellectual Property Rights of the Party;

(e) information relating to the financial position of the Party and in particular includes information relating to the assets or liabilities of the Party and any other matter that does or may affect the financial position or reputation of the Party;

(f) information relating to the internal management and structure of the Party, or the personnel, policies and strategies of the Party;

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(g) information of the Party to which the other Party has access other than information referred to in paragraphs (d), (e) and (f) that has any actual or potential commercial value to the first Party or to the person or corporation which supplied that information;

(h) in the case of the Customer, information relating to the policies, strategies, practices and procedures of the Government of Tasmania and any information in the Contractor’s possession relating to the Tasmanian Public Services; and

(i) information in the Party’s possession relating to the other Party’s clients or suppliers, and like information;

"Configuration" means the various items of operationally related Hardware and software specified for each Site as set out in the Official Order;

"Consultancy Service" means the Consultancy Service specified in the Official Order pursuant to clause 114, which service is to be provided by the Contractor in accordance with a Contract;

"Consumer Price Index (All Capitals)" means that index as published from time to time by the Australian Bureau of Statistics;

"Contract" means a contract formed pursuant to clause 9;

"Contract Authority" means the person or body specified at Item 1 of Schedule 1;

"Contract Authority Provisions" means Part One, Part Two and Schedules 1 and 2;

“Contract Material” means:

(a) any material (including but not limited to software, documentation, or data) created, written, or otherwise brought into existence by or on behalf of the Contractor in the course of performing the Contract in which subsists newly created Intellectual Property Rights excluding any software tools, Object Libraries or methodologies created or enhanced by the Contractor during the performance of the Contract, (hereinafter called “New Contract Material”);

(b) any material which is existing at the date of the Contract and which is incorporated with the New Contract Material (hereinafter called “Existing Contract Material”);

"Contract Period" means the period commencing on the first date in the Project, Implementation and Payment Plan and concluding at the end of the Warranty Period;

"Contract Price" means the total amount payable by the Customer to the Contractor under the Contract for CSE supplied by the Contractor up to the AAD of the System;

"Contract Specifications" means the totality of the applicable Contractor's Specifications, Customer's Functional Specifications, Developed Software Specifications, Site Specification and the Official Order;

"Contractor" means the person or body specified at Item 2 of Schedule 1 and in an Official Order and where the context so admits, includes the employees and authorised sub-contractors and agents of the Contractor;

"Contractor Management Services" means all of the following services and facilities to be provided by the Contractor pursuant to subclause 51.4:

(a) the provision, management and maintenance of sufficient resources including human resources, equipment and facilities to enable the Contractor to fulfil its obligations under a Contract;

(b) a planned, systematic, efficient and comprehensive management approach;

(c) resource identification and mobilisation;

(d) identification of who shall perform the work, when it is required and how it shall be executed and validated;

(e) co-ordination of all activities under a Contract and the functional outputs of all persons including sub-contractors and the Customer;

(f) monitoring of progress;

(g) efficient decision making within the Contractor's organisation and the advising of decisions required by the Customer pursuant to a Contract;

(h) control and rectification of deficiencies in the Product or Service which may arise during the performance of a Contract;

(i) efficiently managing those risks which are the Contractor's responsibility under a Contract;

(j) status reporting to the Delegate;

(k) the preparation of reports in the agreed format pursuant to a Contract;

(l) continuous and visible audit trails;

"Contractor's Specifications" means the specifications referred to in clause 11;

"CSE" means Contractor supplied equipment being the Products and Services to be supplied by the Contractor under a Contract;

"CSI" means the Customer supplied items supplied by the Customer under a Contract and set out in Schedule 5;

"Customer" means a Department, an Agency or, where approved in writing by the Contract Authority and the Contractor, an Eligible non-Government Body, other person or body which requires a Product or Service (which Department, Agency, Eligible non-Government Body, other person or body is specified in the Official Order);

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"Customer's Functional Specifications" means the specifications (if any) referred to in clause 10;

"Data Conversion and Migration Service" means the service provided by the Contractor pursuant to Part Eleven;

"Data Conversion and Migration Service Module Conditions" means Part One, Part Three and Part Eleven;

“Dealer” means a retailer appointed by the Distributor or the Contractor, as the case may be, to supply Packaged Software in accordance with the Licence Agreement set out in Part Twelve;

"Defect", in relation to the Licensed Software and Packaged Software, means a defect, error or malfunction in that software such that the Licensed Software or Packaged Software does not comply with and cannot be used in accordance with the Contractor's Specifications;

"Delegate" means the person for the time being holding, occupying, or performing the duties of the office of the Customer which is empowered to perform any function or to exercise any power of the Delegate under a Contract, the name of which office is set out in the Official Order;

"Deliverables" means the Developed Software, the Developed Software Detailed Design Specifications, the source code referred to in clause 123, other Contract Material and any other deliverable set out in Schedule 6;

"Department" means the Commonwealth, a State or a Territory, as the case may be, represented by a Department of State, or a Department of the Parliament, of the Commonwealth, that State or a Territory or an administrative unit thereof;

"Designated Operating Environment" means the particular hardware and software environment in which the Licensed Software or the Developed Software as the case may be is designed to be used, which environment is specified in the Official Order;

"Developed Software" means:

(a) software that is to be developed, and

(b) the customised or modified parts of Licensed Software that is customised or modified, except for minor customised or modified parts to be detailed in the Official Order;

in accordance with a Contract;

"Developed Software Detailed Design Specifications" means the Document referred to in clause 119;

"Developed Software Module Conditions" means Part One, Part Three and Part Eight;

"Developed Software Specifications" means the specifications in respect of the Developed Software or other Deliverables referred to in clause 116;

“Distributor” means the agent of the Contractor appointed for the purpose of supplying Packaged Software to a Customer in accordance with the Licence Agreement set out in Part Twelve;

"Document" includes:

(a) any paper or other material on which there is writing;

(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

"Documentation" means the comprehensive operating manuals, reference material and other relevant publications and aids referred to in subclause 64.1 and includes the revisions, replacements, amendments and additions referred to in subclauses 64.4 to 64.6;

"Eligible non-Government Body" means a body (including a private school) which is:

(a) directly or indirectly, partially or entirely, funded by the Commonwealth, a State or a Territory; and

(b) non-profit making;

“Facilities Management Services” means the services specified in the Official Order pursuant to clause 145;

"Hardware" means the computer equipment including component parts thereof specified in the Official Order to be acquired or maintained under a Contract, as the case may be, and any substituted equipment or component parts;

"Hardware Acquisition and Installation Module Conditions" means Part One, Part Three and Part Four;

"Hardware Availability" ("HA") in relation to an item of Hardware, means the availability of that item of Hardware at a Site during the Basic Maintenance Period as calculated in accordance with clause 96;

"Hardware Downtime" ("HD") in relation to an item of Hardware, has the meaning set out in clause 96;

"Hardware Maintenance Charge" in relation to an item of Hardware, means the charge payable for the Hardware Maintenance Service in respect of that item;

"Hardware Maintenance Module Conditions" means Part One, Part Three and Part Five;

"Hardware Maintenance Service" means the service provided by the Contractor under the Hardware Maintenance Module Conditions;

"Integration" or "Integrate" in respect of a System includes the implementation and setting to work of the System;

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"Intellectual Property Rights" includes copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights existing in Australia, whether created before on or after the date of a Contract;

"IT Consultancy Service Module Conditions" means Part One, Part Three and Part Seven;

"Licence" means the licence granted under a Licence Agreement;

"Licence Agreement" means a Contract under which the Licensed Software or Packaged Software is licensed to the Customer by the Contractor;

“Licence Details Policy Statement (LDPS)” means a statement in the form approved by the Contract Authority and set out in Schedule 2 and which is to be supplied to a Customer with Packaged Software;

"Licence Fee" means a fee payable under a Licence Agreement including any cost recovery fee payable pursuant to clause 39;

"Licensed Software" means software described in Schedule 2 that is specified in the Official Order (including any Update or New Release of that software) and provided to the Customer under the Licence Agreement and any material related to the Licensed Software such as, but not limited to, flow charts, logic diagrams and listings that the Contractor makes generally commercially available under licence from time to time (excluding source code unless specified in the Official Order);

"Life of the System" means unless otherwise specified in Schedule 2, the period from the Actual Acceptance Date of the first item of Hardware supplied under a Contract to the fifth anniversary of the last occurring Actual Acceptance Date of the last original item of Hardware in the Configuration supplied by the Contractor;

"Location" means the place or places where the Licensed Software is being operated, which place is or places are specified in the Official Order;

"Maintenance Service Period" means the period during which the Hardware Maintenance Service is being provided by the Contractor, which period is referred to in subclause 91.3 and specified in the Official Order;

"Management Committee" means the committee described in subclause 51.6;

"Minimum System Configuration" ("MSC") means a group of operationally related items of Hardware and software agreed between the Parties and specified in the Official Order, as being the configuration which meets the minimum processing needs of the Customer;

"Modules" means Parts Four to Thirteen and such other Parts as are agreed between the Parties;

"Month" means a calendar month;

“New Contract Material” shall have the meaning referred to in paragraph (a) of the definition of “Contract Material”;

"New Release", in relation to the Supported Software or the Developed Software, means software which has been produced primarily to extend, alter or improve the Supported Software or the Developed Software, as the case may be, by providing additional functionality or performance enhancement (whether or not Defects in the software are also corrected) while still retaining the original designated purpose of the Supported Software or the Developed Software, as the case may be;

"Normal Working Day", in relation to a Site, means any day other than Saturday, Sunday or a day that is a Public Holiday for the Customer's employees;

“Object Libraries” means the software sub-routines or modules which can be re-used to configure or build software applications where such reuse would not infringe the Intellectual Property Rights in the Contract Material;

“Ordering Officer” means the Delegate, or if another person is nominated in the Official Order, that person, being the person who is employed by the Customer and who has the authority to order the Product or performance of the Service specified in that Official Order;

“Official Order” means the written document the Customer places with the Contractor in accordance with clause 9;

“Packaged Software” means software which is usually commercially available from the Contractor or agents of the Contractor in packaged (shrink wrap) form;

“Packaged Software Licensing Module Conditions” means Part One, Part Three and Part Twelve;

"Part One" means clause 1;

"Part Two" means clauses 2 to 39;

"Part Three" means clauses 40 to 84;

"Part Four" means clauses 85 to 88;

"Part Five" means clauses 89 to 104;

"Part Six" means clauses 105 to 113;

"Part Seven" means clause 114;

"Part Eight" means clauses 115 to 123;

"Part Nine" means clauses 124 to 129;

"Part Ten" means clauses 130 to 135;

"Part Eleven" means clause 136;

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”Part Twelve” means clauses 137 to 144;

“Part Thirteen” means clauses 145 to 156;

"Parties" in respect of the Agreement means the Contract Authority and the Contractor and in respect of a Contract means the Customer and the Contractor;

"Payment Period" means each period of 3 calendar months 1 January to 31 March; 1 April to 30 June; 1 July to 30 September; and 1 October to 31 December, or part thereof, included in the Term of the Agreement or where this Agreement expires or is terminated before the conclusion of one such 3 calendar month period, the period during which this Agreement continues after that last 3 calendar month period;

"Period of the Licence" means the period ascertained in accordance with clause 106;

"Preventive Maintenance" means the service required to be performed in accordance with the schedule set out in the Official Order pursuant to subclause 91.1;

"Preventive Maintenance Schedule" means the schedule of the times during which the Hardware and system software will be available to the Contractor for performing Preventive Maintenance in accordance with the Contract, which Preventive Maintenance Schedule is, pursuant to subclause 91.1, set out in the Official Order;

"Price" means the price payable for a Product in accordance with clause 4 including any cost recovery fee payable pursuant to clause 39;

"Product" means:

(a) in respect of the Contract Authority Provisions, a product (not including a Service) set out in Schedule 2;

(b) in respect of Hardware Acquisition and Installation Module Conditions, such of the items of Hardware set out in Schedule 2 as are specified in the Official Order;

(c) in respect of Software Licence Module Conditions and Software Support Module Conditions, the Licensed Software;

(d) the Deliverables;

(e) in respect of the Data Conversion and Migration Service Module Conditions, the data migration software and the migrated data;

(f) products incorporated in CSE;

(g) the Documentation; and

(h) in respect of Packaged Software Module Conditions, the Packaged Software;

"Project, Implementation and Payment Plan" means the Plan set out in Schedule 4 and annexed to the Official Order;

"Remedial Maintenance" means the service required to be performed, whether on-site or off-site, to restore the Hardware to a condition allowing performance in accordance with the Contractor's Specifications and the Customer's Functional Specifications for that Hardware, examples of which services may be:

time and materials maintenance service

pick up and delivery maintenance service

return to depot maintenance service

swap-in/swap-out maintenance service;

"Representative" means the person for the time being occupying the position specified in Item 15(c) of Schedule 1 or other position as notified in writing by the Contractor from time to time;

"Response Time" in respect of Hardware Maintenance Module Conditions, means the maximum period allowed under a Contract commencing from the notification by the Customer of a fault condition and expiring on the commencement of Remedial Maintenance;

"Security" means the security for the performance of a Contract as referred to in clause 47;

“Server” means a processor connected to a network and on which the Packaged Software is installed so as to enable workstations on the network to obtain singly or concurrently use of the Packaged Software;

"Service" means:

(a) in respect of the Contract Authority Provisions, a service set out in Schedule 2; and

(b) in respect of a Contract, a service set out in Schedule 2 and specified in the Official Order; and

(c) the items of service incorporated in the CSE.

“Service Performance Factors” means the benchmarks for measurement of performance of Facilities Management Services as agreed between the Parties and set out in Schedule 16 or the Official Order;

“Service Period” means the period during which the Facilities Management Services are to be provided as specified in the Official Order;

“Service Plan” means the plan set out in Schedule 16 and annexed to the Official Order;

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"Site" means the place specified in the Official Order where the Product is to be installed or the Service is to be provided, as the case may be;

"Site Specification" means the Document which details the preparation required at the Site to provide the environmental and operational requirements that are suitable for the Hardware or System , which Document, to the extent to which it is relevant, is hereby incorporated into, and forms part of a Contract;

"Software Licence Module Conditions" means Part One, Part Three and Part Six;

"Software Support Module Conditions" means Part One, Part Three and Part Nine;

"Specified Personnel" means the key personnel specified in the Official Order as personnel required to undertake the Service or part of the work constituting the Service;

"Stage" means a stage or phase identified in the Project, Implementation and Payment Plan for the performance of a Contract and "Stage One" refers to the first occurring such stage, "Stage Two" the second stage and so forth;

"Support Services" means the services provided in respect of Supported Software;

"Supported Software" means any software specified in the Official Order as being required to be supported by the Contractor pursuant to Part Nine;

"System" means:

(a) in respect of the Systems Integration Module Conditions, the CSE as integrated with the CSI as required by the Contract Specifications;

(b) in respect of all other Modules, the group of operationally related items of hardware and software agreed between the Parties and specified in the Official Order, which configuration represents the operational system intended to meet the Customer's processing needs;

"System Availability" ("SA") in relation to the MSC, means the availability of the MSC during an Accounting Period expressed as a percentage and as calculated in accordance with subclause 96.3;

"System Downtime" in relation to the MSC, has the meaning set out in subclause 96.4;

"System Maintenance Charge" means the sum total of Hardware Maintenance Charges for all items of Hardware comprising a System for which Hardware Maintenance Service is required under a Contract;

"Systems Integration Module Conditions" means Part One, Part Three and Part Ten;

"Term of this Agreement" means the period referred to in clause 2;

"Update", in relation to the Supported Software or the Developed Software means software which has been produced primarily to overcome Defects in, or to improve the operation of, the Supported Software or the Developed Software, without significantly altering the Contractor's Specifications whether or not the Supported Software or the Developed Software as the case may be, has also been extended, altered or improved by providing additional functionality or performance enhancement;

"Warranty Period" means:

(a) a period of 90 days for Licensed Software or 365 days for Hardware, or such longer period as is specified in Schedule 2 or agreed between the Parties and set out in the Official Order, commencing on the AAD in respect of that Licensed Software or Hardware;

(b) in relation to an item of Hardware maintained under a Contract, the period of warranty applicable to that item when that item was purchased which period is specified in the Official Order;

(c) in relation to a part of the System, the period specified in the Project, Implementation and Payment Plan or the Official Order as the case may be and commencing on the date on which the Certificate of Acceptance was issued for that part of the System;

(d) in relation to the System (being those parts of the System not otherwise accepted), the period specified in the Project, Implementation and Payment Plan or the Official Order, as the case may be, and commencing on the date on which the Certificate of Acceptance was issued for the System;

(e) in relation to all other Products (including Developed Software), the period specified in the Project Implementation and Payment Plan or the Official Order, as the case may be, and commencing on the AAD of that Product;

"writing" includes any mode of representing or reproducing words, figures, drawings or symbols in a visible form delivered posted or transmitted electronically.

1.2 In this Agreement and in a Contract, unless the contrary intention appears:

(a) the clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;

(b) a cross reference to a clause number is a reference to all its subclauses;

(c) words in the singular number include the plural and vice versa;

(d) words importing a gender include any other gender;

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(e) a reference to a person includes a partnership and a body, whether corporate or otherwise;

(f) a reference to a clause or subclause is a reference to a clause or subclause of this Agreement or a Contract as the case may be;

(g) a reference to a Schedule is a reference to a Schedule to this Agreement or a Contract as the case may be;

(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(i) a reference to information "set out in Schedule 2" is a reference to information either set out in Schedule 2 or set out at another place but which Schedule 2 incorporates as part of Schedule 2;

(j) a reference to "Schedule 2" includes a reference to any part of Schedule 2 which is not physically annexed to this Agreement but which is incorporated by reference into Schedule 2;

(k) monetary references are references to Australian currency;

(l) a reference to an annex or an annexure is a reference to an annex or an annexure to an Official Order.

1.3 In this Agreement and in a Contract, the Parties acknowledge and agree that business may be undertaken by the electronic exchange of information and the provisions of this Agreement and a Contract shall be read and construed to give effect thereto.

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Government Information Technology Conditions Version 2PART TWO - Provisions of the Agreement Between the Contract Authority and the Contractor

PART TWO

Provisions of theAgreement Between the Contract Authority

and

the Contractor

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PART TWO - AGREEMENT BETWEEN THE CONTRACT AUTHORITY AND THE CONTRACTOR

2. Term of Agreement

This Agreement commences on the date set out at Item 4(a) of Schedule 1 and continues in force for the period set out in Item 4(b) of that Schedule, unless sooner determined in accordance with this Agreement.

3. List of Products and Services

3.1 The list of each Product and Service offered to be supplied by the Contractor forms Schedule 2.

3.2 Subject to subclause 3.3 and subclause 3.5, the list of each Product and Service shall be in the form which the Contractor itself keeps a list (if any) of each Product and Service it supplies for the purposes of dealing with the majority of its non-government customers.

3.3 The Contract Authority may from time to time specify in writing:

(a) a format for the list of each Product and Service; and

(b) that a particular Product or Service is to be withdrawn from the list of each Product and Service or other amendment is to be made to the list;

and the Contractor shall as soon as possible but not later than the next time it varies its Base Cost provide the Contract Authority with a list in the format and with the withdrawals and amendments so specified.

3.4 The list of each Product and Service may, if agreed between the Parties, be provided in electronic media, by on-line access to the Contractor's data base or by other form of electronic exchange of information.

3.5 If the list referred to in subclause 3.2 does not:

(a) list and price each Product or Service as a discrete item which can be separately ordered and the Base Cost for that item;

(b) describe each Product or Service by reference to the Contractor's usual catalogue number;

(c) describe each Product which is capable of connection to the public telecommunications network with an Austel equipment permit number (unless the Product is exempt under the Telecommunications Act 1991); and

(d) indicate which Product or Service complies with Australian New Zealand Government Open Systems Interconnection Profile (ANZ GOSIP) applicable at the time that the list is supplied;

the Contractor shall modify the list so that it contains that information.

3.6 The Base Cost of a Product or Service shall:

(a) be expressed in Australian dollars and include any customs duty, and any cost recovery fee payable under clause 39;

(b) exclude any other government tax, duty and charge and any price or licence fee for a Warranty Period in excess of 90 days for Licensed Software or a Service and 365 days for Hardware; and

(c) exclude travel expenses and charges for Acceptance Testing.

3.7 The Base Cost of a Product shall exclude delivery and installation charges. Any delivery and installation charges for a Product shall be listed as a separate Service.

3.8 The list of each Product and Service shall be dated and include as a separate entry:

(a) details of the costs referred to in paragraph 3.6 (b), and subclause 3.7;

(b) the fraction of the Base Cost subject to variation in accordance with movements in the Consumer Price Index (All Capitals);

(c) the fraction of the Base Cost subject to exchange rate variation; and

(d) the exchange rate applicable at the date of the list.

The sum of the fractions referred to in paragraph (b) and (c) shall be less than or equal to one (1).

4. Prices, Licence Fees and Charges for Products and Services

4.1 The Price, Licence Fee or Charge in respect of a Product or Service to be supplied under the Contract shall be:

(a) where the Base Cost of that Product or Service is specified in Schedule 2 - that Base Cost current at the date on which the Contract is formed less any discount current at that date (if any) specified in Schedule 2 plus any applicable government tax, duty or charge included in the list referred to in subclause 3.8, and shall be set out in the Official Order;

(b) where the Base Cost of that Product or Service is not specified in Schedule 2 - the Price, Licence Fee or Charge set out in the Official Order in respect of a Contract, specifying the matters referred to in subclause 3.8.

4.2 For the purposes of determining the details required to despatch an Official Order under clause 9:

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(a) where subclause 4.1(a) applies, the Price, Licence Fee or Charge shall be taken to be a detail already agreed to by the Contractor; and

(b) where subclause 4.1(b) applies, the Price, Licence Fee or Charge shall be a detail to be agreed between the Contractor and the Customer.

4.3 Nothing in this clause shall prevent the Contractor and Customer from negotiating to reduce the Base Cost or increase the discount in respect of a particular Product or Service provided that the Contractor shall not seek from or agree with a Customer, any increase in the Base Cost or decrease in the discount other than pursuant to clause 7 and clause 8 respectively.

4.4 Any "special" price, licence fee or charge in relation to a Product or Service that is:

(a) offered by the Contractor to any of its end-user customers (whether or not a Customer within the meaning of this Agreement); and

(b) lower than the current Base Cost less the applicable discount for that Product or Service;

shall be made available to all Customers, in similar circumstances and using substantially the same terms and conditions, during the period during which that special price, licence fee or charge is being offered by the Contractor.

4.5 The Base Cost may be varied in accordance with clause 7 whether or not any Contract has been formed.

5. Bundled Offerings which include Third Party Items

Where the Contractor offers a Product in Schedule 2 on the basis that it intends to resell or on-licence that Product, the Contractor warrants that it has the right to resell or on-licence to a Customer that Product in accordance with this Agreement or a Contract.

6. Warranty as to Prices, Licence Fees and Charges

6.1 The Contractor warrants that the Price, Licence Fee or Charge payable by a Customer in respect of a Product or Service under this Agreement and the price charged by the Contractor for items which are used in the provision of a Service (where those items are charged separately), will be no less favourable than the price, licence fee or charge paid by any other purchasers of a substantially similar product or service from the Contractor in similar circumstances and using substantially the same terms and conditions.

6.2 The Contractor shall, on request from the Contract Authority, provide to the Contract Authority all documents and other information reasonably required to substantiate the prices of the separately charged items claimed.

7. Base Cost Variation

7.1 The Base Cost in relation to a particular Product or Service may be reduced by the Contractor at any time during the Term of this Agreement, which reduced price takes effect as the new Base Cost in relation to that Product or Service on the date on which the Contract Authority receives notification of that reduced price from the Contractor, unless another date is agreed in writing between the Parties.

7.2 The Contractor may not increase the Base Cost of a Product or a Service at any time during the Term of this Agreement unless by notice in writing to the Contract Authority and unless otherwise agreed in writing between the Contractor and the Contract Authority, an increase in the Base Cost under this subclause shall be limited to an amount which takes account of:

(a) movements in the relevant exchange rate as it affects that Product; or

(b) movements in the Consumer Price Index (all Capitals) as it affects that Product or Service,

as calculated in accordance with the following formula:

where:

PV = Base Cost Variation;

P1 = current Base Cost applicable to the Product or Service;

E1 = relevant Australian (selling) exchange rate applicable to the Product either:

(a) at the date of a Contract, or

(b) if the Base Cost has been varied previously, the date on which the Contract Authority received notification from the Contractor in respect of the last variation to effect the current Base Cost;

E2 = relevant Australian (selling) exchange rate applicable on the date on which the Contract Authority received notification of the proposed increased price from the Contractor;

C1 = Consumer Price Index (all Capitals) applicable to the Product or Service either:

(a) at the date of the Contract; or

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(b) if the Base Cost has been varied previously, the date on which the Contract Authority received notification from the Contractor in respect of the last variation to effect the current Base Cost;

C2 = the most recently available Consumer Price Index (all Capitals) on the date on which the Contract Authority received notification of the proposed increased price from the Contractor;

IC = the fraction of the Base Cost subject to variation in accordance with movements of the relevant exchange rate set out in Schedule 2;

NIC = the fraction of the Base Cost subject to variation in accordance with movements of the Consumer Price Index (all Capitals) set out in Schedule 2.;

and where:

(a) IC + NIC is less than or equal to 1; and

(b) if no fraction has been provided by the Contractor, the fraction shall be deemed to be zero.

7.3 An increase in the Base Cost takes effect as the new Base Cost in relation to a Product on the first day of the next Payment Period following receipt of an application for increase provided the application is received no later than 14 days prior to the commencement of that Payment Period.

7.4 An increase in the Base Cost takes effect as the new Base Cost in relation to a Service on the expiration of 30 days from the date on which the Contract Authority receives notification of the increased price from the Contractor, unless another date is agreed in writing between the Parties.

7.5 When the Contractor varies the Base Cost of a Product or Service it must supply a copy of a revised Schedule 2 which incorporates the proposed changes in price and specifies the date on which the proposed variation in price is to take effect in accordance with subclauses 7.3 and 7.4.

7.6 The Contractor shall, when it notifies or requests a price increase under subclause 7.2, provide to the Contract Authority such Document or other information as the Contractor considers appropriate for the purpose of substantiating the requested price increase.

7.7 Where the Contract Authority queries a price increase notified or requested under subclause 7.2, and the Contractor is not able, on the basis of the information it provided to the Contract Authority, to substantiate to the Contract Authority any, or a part of, the notified or requested price increase, the Base Cost shall be increased by only so much as the Contractor is able to substantiate and:

(a) the substantiated increased Base Cost shall take effect as the new Base Cost in relation to the Product or Service as the case may be, on the date referred to in subclause 7.3 or 7.4 unless another date is agreed in writing between the Parties; and

(b) the Contractor shall, if it has not already done so, supply a suitably revised Schedule 2 in accordance with the requirements of subclause 7.5.

7.8 Where a variation in a government tax, duty or charge affects the Base Cost of a Product or Service, the Contractor may vary the Base Cost to take account of the variation in the tax, duty or charge, but where that variation increases the Base Cost that increase will not take effect, and the Customer is not obliged to pay the amount claimed to be attributable to that tax, duty or charge, unless and until the Contract Authority is satisfied that:

(a) the claimed increase is actually attributable to that tax, duty or charge; and

(b) the tax, duty or charge increase has affected the Price, Licence Fee or Charge of the actual Product or Service to be supplied.

8. Discount Variation

8.1 A discount offered by the Contractor under this Agreement may be increased at any time during the Term of this Agreement, which increased discount takes effect on the date on which the Contract Authority receives notification of that increased discount from the Contractor, unless another date is agreed in writing between the Parties.

8.2 Any discount offered by the Contractor under this Agreement cannot be reduced during the Term of this Agreement without the agreement in writing of the Contract Authority.

9. Formation of Contracts

9.1 In this clause "details" means the details in relation to the matters set out in Schedule 3 as apply to the relevant Module.

9.2 When a Customer requires a Product or Service set out in Schedule 2, and details have not already been agreed by the Contractor either in general or specific terms in this Agreement (including Schedule 2), the Customer shall consult with the Contractor about the details and the Customer and the Contractor shall endeavour to come to an agreement about those details.

9.3 An Official Order may only contain details which have been already agreed either generally or specifically in accordance with subclause 9.2. Every order placed by a Customer with the Contractor for a Product or Service shall be an Official Order for the purpose of this Agreement, whether or not all details have been included in the Official Order and notwithstanding that the order is not identified on its face as an Official Order under this Agreement, unless the Contractor can prove to the satisfaction of the Contract Authority that the order was made under another contract between the Customer concerned and the Contractor.

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9.4 The Contractor agrees that each Official Order will result in the formation of a separate Contract between the Customer and the Contractor for the offered Product or Service. The Contract shall come into force on the date of receipt by the Contractor of the Official Order. The Contractor shall then supply the Product or Service specified in the Official Order in accordance with the Contract.

9.5 Where the Parties are unable to reach agreement in relation to the details referred to in subclause 9.2, no contract is formed between the Parties.

9.6 The terms and conditions of a Contract between the Customer and the Contractor are those appearing in:

(a) the provisions of Part One;

(b) the provisions of Part Three;

(c) the Module applicable to the transaction at the time a Contract is formed;

(d) the Official Order (including any Additional Conditions);

(e) any Document or part thereof, expressly incorporated as part of a Contract by this Agreement;

(f) any Document or part thereof, that the Official Order expressly incorporates as part of a Contract; and

(g) any variation of the terms and conditions of a Contract occurring pursuant to any written agreement between the Parties orany notices issued in accordance with the Contract.

9.7 In the event of any inconsistency between:

(a) the provisions referred to in subclauses 9.6 (a) (b) (c) (d) and (e) and any other provisions, or the content of any other Document the provisions referred to in subclause 9.6 (a) (b) (c) (d) and (e) shall prevail; and

(b) the Official Order and the content of a Document or provision expressly incorporated as part of a Contract - the content of the Official Order shall prevail;

to the extent of the inconsistency.

9.8 (a) Where the Customer proposes to acquire a product or service offered by the Contractor to the Customer (whether as CSE orotherwise) which is not set out in Schedule 2 the Contractor shall offer that product or service to the Contract Authority in the form specified in Clause 3 for inclusion into Schedule 2. The Contract Authority shall promptly make its determination whether or not to accept that offer;

(b) The Customer and the Contractor shall not proceed with the proposed acquisition until the Contract Authority makes its determination pursuant to subclause 9.8 (c) or (d);

(c) The product or service referred to in subclause 9.8 (a) shall be deemed to form part of Schedule 2 from the date the Contract Authority despatches notification in writing to the Contractor that such product or service forms part of Schedule 2;

(d) Where the Contract Authority notifies the Contractor in writing that it does not accept the offer to include in Schedule 2 the product or service referred to in subclause 9.8 (a), the Customer and the Contractor shall not proceed under this Agreement with the proposed acquisition of that product or service;

(e) Where a product or service referred to in subclause 9.8 (a) is offered to the Customer in any other Common Use Contract administered by the Contract Authority, the provisions of subclause 9.8(a) do not apply.

10. Customer's Functional Specifications

10.1 A Product or Service supplied by the Contractor shall conform to any written specification of functional requirements provided by the Customer or the Contract Authority on behalf of the Customer and agreed in writing by the Contractor, whether or not referred to in, or attached to the Official Order.

10.2 In the event of any inconsistency between:

(a) the Customer's Functional Specifications; and

(b) the Contractor's Specifications;

the Customer's Functional Specifications shall prevail to the extent of the inconsistency.

11. Contractor's Specifications

11.1 A Product or Service supplied by the Contractor shall conform to:

(a) the specifications in respect of the Product or Service communicated specifically by the Contractor to the Contract Authority in writing (whether or not referred to in, or attached to, the Official Order); and

(b) the current applicable specifications in respect of the Product or Service published generally by the Contractor;

and to the extent that there is any inconsistency between the specifications referred to in paragraph (a) and those referred to in paragraph (b), those referred to in paragraph (a) shall, to the extent of the inconsistency, be deemed to be the specifications to which the Product or Service supplied by the Contractor must conform.

11.2 The specifications referred to in subclause 11.1 do not include the functional specifications referred to in clause 10.

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12. Additional Items

12.1 When, during the Term of this Agreement, the Contractor is first making available on a general commercial basis, modified versions or upgrades of the Product or a further product with a function or purpose similar to that performed by a Product, the Contractor shall at that time offer to include those items in Schedule 2.

12.2 When, during the Term of this Agreement, the Contractor is first making available on a general commercial basis, a new service consistent with the nature of the Contractor's existing Services, the Contractor shall at that time offer to include that service in Schedule 2.

12.3 When, during the Term of this Agreement, the Contractor is first making available on a general commercial basis, new items of hardware or software released in Australia by the Contractor or by the manufacturer of the item unrelated to the Products in Schedule 2, the Contractor may, at its discretion, offer to include those items in Schedule 2.

12.4 The items of hardware and software referred to in subclause 12.1 and 12.3, and the service referred to in subclause 12.2, shall be deemed to form part of Schedule 2 from the date the Contract Authority notifies the Contractor in writing that those items and that service form part of Schedule 2.

13. No Assurance of Orders

This Agreement shall not be construed so as to imply that:

(a) the Contractor has the right to be the sole supplier of a Product or Service to the Contract Authority or a Customer; or

(b) any Official Order will be placed with the Contractor.

14. Contractor to Deal with Customers under this Agreement

Where a Customer wishes to acquire a Product or to be provided with a Service set out at Schedule 2, the Contractor shall, subject to this Agreement, supply that Product or provide that Service, to the Customer on the basis of this Agreement and the Official Order.

15. Customer May Enforce Agreement

The Parties agree that a Customer who is not a Party to this Agreement may take the benefit of, and seek to enforce, this Agreement in its own name.

16. Minimum Insurance Requirements

16.1 Without limiting the Contractor's obligations under this Agreement the Contractor shall, and shall ensure that any sub-contractor will, be and remain a beneficiary under, or arrange and maintain with a reputable insurance company for the Term of this Agreement;

(a) a broad form public liability policy of insurance to the value of at least $5 million in respect of each claim;

(b) workers' compensation insurance in accordance with applicable legislation; and

(c) such other insurance policies as are specified at Item 5(a) of Schedule 1, on the terms, and to the amounts, set out in that Schedule in respect of the liability of the Contractor that may arise from the performance of this Agreement.

16.2 Where the Contract Authority requires:

(a) the insurance policy to be taken out in the joint names of the Contract Authority (or another government body) and the Contractor; or

(b) the name of the Contract Authority (or another government body) to be noted as joint insured on the relevant insurance policy;

this requirement shall be specified at Item 5(b) of Schedule 1.

16.3 The Contractor shall, on request, produce to the Contract Authority satisfactory evidence that the Contractor has effected and renewed a particular insurance policy which shall be maintained fully effective and current for the Term of this Agreement.

17. Restrictions on Dealings with certain Agencies

17.1 Where the Contractor does not wish to supply a particular Product or a particular Service (or any of its Products or Services) to a particular Agency or Eligible non-Government Body, whether in particular circumstances or generally, the details of the Agencies or Eligible non-Government Bodies affected by those restrictions and the extent of the restrictions, shall be agreed and set out at Item 6 of Schedule 1.

17.2 If at any time during the Term of this Agreement the Contractor wishes to restrict its dealings with any other Agency or Eligible non-Government Body as described in subclause 17.1, the Contractor shall so request the Contract Authority and the Contract Authority shall approve that request if there are genuine commercial reasons (including extremely high risk) for the Contractor's request.

17.3 Where the Contract Authority does not approve a request of the Contractor under subclause 17.2, the Contract Authority reserves the right to terminate this Agreement pursuant to clause 23.

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17.4 The Contractor may at any time lift the restrictions it has placed on its dealings with an Agency or Eligible non-Government Body and shall notify the Contract Authority accordingly.

18. Use of Approved Agents

18.1 The Contractor may supply Products and Services through agents of the Contractor approved by the Contract Authority from time to time and identified in Item 7 of Schedule 1.

18.2 The Contractor shall continue to be bound by the provisions of this Agreement and every Contract created shall be deemed to be a Contract with the Contractor, notwithstanding that the Products and Services supplied under a Contract are supplied by the approved agent of the Contractor.

19. Confidentiality and Disclosure of Information19.1 Parties may disclose

Despite any confidentiality or Intellectual Property Right subsisting in this Agreement or a tender giving rise to it, either Party may publish, without reference to the other, all or any part of this Agreement, except those parts identified in Schedule 17 (“Confidential Provisions”).

19.2 Limited confidentiality

(a) The Head of Agency has determined that the Confidential Provisions must remain confidential.

(b) The Parties must maintain confidentiality of the Confidential Provisions for the period determined and approved by the Head of Agency, except to the extent that:

(i) the Confidential Provisons are available to the public generally, other than by breach of this Agreement;

(ii) a law requires a Party to file, record or register something that includes Confidential Provisions;

(iii) disclosure is necessary or advisable to get a consent, authorisation, approval or licence from a governmental or public body or authority;

(iv) it is necessary or advisable to disclose the Confidential Provisions to a taxation or fiscal authority;

(v) it is necessary to disclose the Confidential Provisions in answer to a question asked of a Minister of State in the Tasmanian Parliament or otherwise to comply with a Minister’s obligations to the Tasmanian Parliament;

(vi) the Confidential Provisions are disclosed confidentially to a Party’s professional advisers:

(A) to get professional advice about this Agreement; or

(B) to enforce this Agreement; or

(vii) the Parties agree otherwise in writing.

19.3 Contractor must not disclose other material

Subject to clause 19.1, the Contractor must not publicly disclose, or use for a purpose other than this Agreement or a Contract, any information or material acquired or produced in connection with, or by performing, this Agreement, including CSI or Contract Material (“Confidential Material”), without the Contract Authority’s prior written consent, except to the extent that:

(a) the Confidential Material is available to the public generally, other than by breach of this Agreement;

(b) a law requires the Contractor to disclose, file, record or register something that includes Confidential Material;

(c) disclosure is necessary or advisable to get a consent, authorisation, approval or licence from a governmental or public body or authority;

(d) it is necessary or advisable to disclose the Confidential Material to a taxation or fiscal authority;

(e) the Confidential Material is disclosed confidentially to professional advisers:

(i) to get professional advice about this Agreement; or

(ii) to enforce this Agreement; or

(f) the Parties agree otherwise in writing.

19.4 Employees to comply

The Parties must ensure that their respective employees who have access Confidential Provisions, Confidential Material, or both, are aware of, and comply with, all confidentiality obligations affecting it.

19.5 Privacy obligations preserved

Nothing in this clause derogates from a Party’s obligations under the Personal Information Protection Act 2004 (Tas) or the Privacy Act 1988 (Cwlth).

19.6 Confidentiality Deed

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The Contract Authority may at any time require the Contractor to arrange for its employees, agents or sub-contractors engaged in the performance of this Agreement to execute a Deed of Confidentiality substantially in the form appearing in Schedule 10 relating to the non-disclosure of Confidential Provisions or Confidential Material and the Contractor shall arrange for all such Deeds to be executed promptly.

20. Credit Card Facility

A Customer may pay any amount due under a Contract by means of credit card of a type specified in Item 9 of Schedule 1.

21. Applicable Standards

A Product or Service supplied by the Contractor shall comply with the applicable Australian or New Zealand Standards or if there are no applicable Australian or New Zealand Standards -the applicable International Standards (if any).

22. Condition as to Disclosure by Contractor

It is a condition of this Agreement that the Contractor has disclosed in writing to the Contract Authority prior to this Agreement:

(a) any litigation or proceeding whatsoever, actual or threatened, against the Contractor;

(b) the existence of any breach or default or alleged breach or default of any agreement, order or award binding upon the Contractor; and

(c) matters relating to the commercial, technical or financial capacity of the Contractor or of any sub-contractor or agent proposed to be engaged in respect of this Agreement;

being matters materially affecting the Contractor's ability to perform any of its obligations under this Agreement, and the Contractor shall promptly notify and fully disclose to the Contract Authority in writing any event or occurrence actual or threatened during the term of this Agreement which would materially affect the Contractor's ability to perform any of its obligations under this Agreement.

23. Termination of this Agreement

23.1 The Contract Authority may, by giving 30 days notice in writing to the Contractor, terminate this Agreement in whole or in part without prejudice to any other right of action or remedy which has accrued or may accrue in favour of either Party.

23.2 The Contractor may, by giving 30 days notice in writing to the Contract Authority, terminate this Agreement in whole or in part without prejudice to any other right of action or remedy which has accrued or may accrue in favour of either Party.

23.3 If this Agreement is terminated, discharged or in any other way comes to an end, in whole or in part, whether pursuant to this clause or in any other way, no Contract shall, unless the context necessarily requires it, be affected in any way whatsoever.

24. Termination of Contract Not to Affect Agreement

If a Contract is terminated in whole or in part, this Agreement shall not, unless the context necessarily requires it, be affected in any way whatsoever.

25. Variation of Agreement

The provisions of this Agreement shall not be varied either in law or in equity except by agreement in writing signed by the Contract Authority and the Contractor.

26. Compliance with Laws

The Contractor shall in carrying out this Agreement comply with the provisions of any relevant laws.

27. Severability

Each and every provision of this Agreement, and each and every part thereof shall, unless the context otherwise necessarily requires it, be read and construed as a separate and severable provision, or as separate and severable parts thereof, so that if any provision, or part thereof, is void or otherwise unenforceable for any reason, then that provision, or part thereof, as the case may be, shall be severed and the remainder shall be read and construed as if the severable provision, or part thereof, had never existed.

28. Industry Development Obligations

The Contractor shall comply with industry development obligations, if any, arising in relation to sales to Commonwealth, State and Territory Governments in accordance with the requirements of the Partnerships for Development or the Fixed Term Arrangements Programs.

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29. Quality Compliance

29.1 If specified in Item 10 of Schedule 1 the Contractor shall operate for the Term of this Agreement a Quality System conforming to the appropriate quality system standard, and shall possess a current certificate issued by a Joint Accreditation System of Australia and New Zealand (JAS-ANZ) accredited certification body certifying the Contractor’s compliance with that Quality System.

29.2 For the purpose of sub-clause 29.1, the appropriate Quality System standards shall be the Standards Australia Quality System standards (or if there are no such standards, equivalent Quality Systems standards) applicable to the Products and Services specified in Schedule 2 for their design, manufacture, supply, delivery and maintenance as appropriate.

30. Performance Guarantee (Contract Authority)

30.1 Subclause 30.2 and 30.3 apply unless the Parties agree and it is specified in Item 11 of Schedule 1 that either or both subclauses do not apply.

30.2 If requested by the Contract Authority, the Contractor shall lodge with the Contract Authority in the form and by a guarantor approved in writing by the Contract Authority, a properly executed Performance Guarantee.

30.3 If requested by the Contract Authority, the Contractor shall arrange for such of the directors of the Contractor as are specified by the Contract Authority to lodge with the Contract Authority substantially in a form appearing in Schedule 12, a properly executed Performance Guarantee.

31. Unconditional Financial Undertaking (Contract Authority)

31.1 This clause 31 applies unless the Parties agree and it is specified in Item 12(a) of Schedule 1 that it is not to apply.

31.2 If required by the Contract Authority, the Contractor shall provide security in the form of an unconditional and irrevocable financial undertaking from a guarantor approved in writing by the Contract Authority. The Security provided shall be substantially in the form appearing in Schedule 11 and shall be provided at the date and for a maximum aggregate sum specified in Item 12(b) of Schedule 1.

31.3 All charges incurred by the Contractor in obtaining and maintaining the Security pursuant to subclause 31.2 shall be met by the Contractor.

32. Limitation of Liability

32.1 This clause 32 does not apply unless the Contract Authority and the Contractor agree otherwise and it is specified in Item 13(a) of Schedule 1 that it is to apply.

32.2 The liability of a Party under each Contract, in respect of each occurrence giving rise to an action described in subclause 68.1 shall, except in relation to liability:

(a) for personal injury (including sickness and death);

(b) for loss of, or damage to, tangible property;

(c) under an indemnity provided by a Party under clause 66 or 67 of each Contract;

be limited to an amount of (X) million dollars or (Y) times the amount payable by the Customer under the Contract, whichever is the greater amount (as specified in item 13 (b) or 13(c) of Schedule 1 respectively).

32.3 In subclause 32.2 "occurrence" means either a single occurrence, or a series of occurrences if these are linked or occur in connection with one another from one original cause, as the case may be.

33. Applicable Law

This Agreement shall be governed by, and construed in accordance with, the laws of the Australian State or Territory specified at Item 14 of Schedule 1, and the Parties agree that the courts of that State or Territory shall have jurisdiction to entertain any action in respect of, or arising out of, this Agreement and hereby submit themselves to the jurisdiction of those courts.

34. Assignment and Novation

34.1 Neither Party shall assign, in whole or in part, its benefits under this Agreement without the prior written consent of the other Party.

34.2 The Contract Authority shall not be obliged to consent to any novation but where the Contractor proposes to enter into an arrangement which will require novation of this Agreement it shall consult with the Contract Authority within a reasonable period prior to the proposed novation.

35. Waiver

A waiver by either Party in respect of a breach of a provision of this Agreement by the other Party shall not be deemed to be a waiver in respect of any other breach and the failure of either Party to enforce at any time a provision of this Agreement shall in no way be interpreted as a waiver of such provision.

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36. Entire Agreement

This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

37. Government Taxes, Duties and Charges

Subject to subclause 7.8, all taxes, duties and charges imposed or levied in Australia or overseas in connection with the performance of this Agreement, other than those included in the list referred to in paragraph 3.8(a), shall be borne by the Contractor or its sub-contractor, as the case requires.

38. Notices (Contract Authority and Contractor)

38.1 A notice or other communication which may be given to or served on the Contractor under this Agreement shall be deemed to have been duly given or served if it is in writing, signed by the Contract Authority and is either delivered by hand, posted or a copy transmitted electronically to the Contractor or its agent at any registered office of the Contractor or posted to the Contractor's address set out at Item 15(a) of Schedule 1 or such other address as is notified in writing to the Contract Authority from time to time.

38.2 A notice or other communication which may be given to or served on the Contract Authority under this Agreement shall be deemed to have been duly given or served if it is in writing, signed by the Contractor or the Representative and is either delivered by hand, posted or a copy transmitted electronically to the Contract Authority at the address set out at Item 15(b) of Schedule 1 or such other address as is notified in writing to the Contractor from time to time.

38.3 A notice sent by post shall be deemed to have been given at the time when, in the ordinary course of the post, it would have been delivered at the address to which it is sent.

38.4 A notice sent by facsimile transmission or transmitted electronically shall be deemed to have been given when the machine on which the notice is sent reports in writing that the notice has been transmitted satisfactorily.

38.5 If delivery or receipt of a notice or communication occurs on a day on which business is not generally carried on in the place to which the notice or communication is sent or is later than four (4) pm (local time) it will be taken to have been duly given or made at the commencement of business on the next day on which business is generally carried on in that place.

39. Cost Recovery Fee

39.1 The Contractor shall, subject to subclause 39.3, pay to the Contract Authority a cost recovery fee at the rate set out at Item 16(a) of Schedule 1 on the value of all Products or Services invoiced to a Customer pursuant to an Official Order, which cost recovery fee is to be paid within one calendar month from the conclusion of each Payment Period within which the invoice is issued or the payment is received as specified in Item 16(b) of Schedule 1.

39.2 The Contractor acknowledges that the cost recovery fee payable has been allowed for in the tendered price together with all costs associated with calculating, proving and paying the cost recovery fee and agrees that the amount of the cost recovery fee will not under any circumstances be shown as a separate charge in any quotation or invoice.

39.3 Where the Contractor considers that an accounting adjustment to the amount of cost recovery fee paid or payable during a Payment Period is required, it shall consult with the Contract Authority and the Parties may agree on the amount of any adjustment.

39.4 Payment shall be by means of a cheque made payable to the person set out at Item 16(c) of Schedule 1 or by other means approved by the Contract Authority and shall be forwarded to the address set out at Item 16 (d) of Schedule 1.

39.5 Each payment shall be accompanied by:

(a) a report (in a form approved by the Contract Authority) which relates to the relevant Payment Period;

(b) a Statutory Declaration or an external audit return certificate as specified in Item 16 (b) of Schedule 1.

39.6 Where no invoice is issued to a Customer during a Payment Period, the Contractor shall provide, within one calendar month from the conclusion of that Payment Period, a report stating that no invoice was issued during that Payment Period and a Statutory Declaration or an external audit return certificate as specified in Item 16(e) of Schedule 1.

39.7 The Contractor shall set up and maintain a procedure which:

(a) in the reasonable opinion of the Contract Authority , is suitable for the monitoring by the Contract Authority of Official Orders placed with, and invoices issued by, the Contractor, and for the provision of the information required under subclause 39.5; and

(b) accommodates the use of the Customer's Corporate Credit Card if the Parties have agreed to use that Card for purchases of Products or Services.

39.8 The Contractor shall, if requested in writing by the Contract Authority, within one calendar month after the conclusion of every 4 Payment Periods, provide to the Contract Authority a report prepared by, or under the direction of, the Contractor's chief accounting officer, or an independent auditor's certificate, confirming the accuracy of all reports submitted for the preceding 4 Payment Periods.

39.9 The Contract Authority may, at its cost, take such measures as are reasonable in all the circumstances (including the appointment of an auditor) to verify the amount of cost recovery fee due to the Contract Authority.

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39.10 The Contractor shall, for the Term of this Agreement, and for a 12 month period after that Agreement has expired, or, if this Agreement is terminated before that time, for a period of 12 months from the date this Agreement was terminated, keep secure all relevant Documents and supporting materials and give any auditor appointed by the Contract Authority access at all reasonable times to those Documents and supporting materials.

40. Rights cumulation

The rights and remedies provided for in this Agreement are cumulative and not exclusive of any rights or remedies provided at law or in equity.

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Government Information Technology Conditions Version 2PART THREE - Standard Provisions of the Contract between a Customer and the Contractor

PART THREE

Standard Provisions of the Contractbetween a Customer and the Contractor

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PART THREE - STANDARD PROVISIONS OF CONTRACT BETWEEN A CUSTOMER AND THE CONTRACTOR

40. Provisions of Agreement to apply to the Contract

The following provisions apply to the Contract as if they were repeated in this clause:

(a) Warranty as to Prices, Licence Fees and Charges (clause 6);

(b) Customer's Functional Specifications (clause 10);

(c) Contractor's Specifications (clause 11);

(d) Confidentiality and Disclosure of Information (clause 19);

(e) Applicable Standards (clause 21);

(f) Condition as to Disclosure by Contractor (clause 22);

(g) Compliance with Laws (clause 26);

(h) Severability (clause 27);

(i) Applicable Law (clause 33);

(j) Assignment and Novation (clause 34);

(k) Waiver (clause 35);

(l) Entire Agreement (clause 36);

provided that in respect of the Contract "Agreement" and "Contract Authority" wherever appearing shall be read as "Contract" and "Customer" respectively.

41. Delivery and Installation

41.1 The Contractor shall perform the delivery Service (if any) and the installation Service (if any) by the date and in the manner specified in the Project, Implementation and Payment Plan or the Official Order, as the case may be.

41.2 Unless otherwise agreed between the Parties the Contractor shall remove all packaging material from the Site.

41.3 Charges (if any) for delivery or, installation of the Product provided by the Contractor shall be calculated in accordance with clause 4.

42. Payment

42.1 Payment for a Product is due at midnight on the AAD of that Product, unless otherwise specified in the Official Order or the Project, Implementation and Payment Plan.

42.2 Payment for a Service is due on the date set out in the Official Order or the Project, Implementation and Payment Plan.

42.3 The Customer shall make payment for a Product or Service 30 days (or such number of days as is specified in the Official Order) after receipt of a correctly rendered invoice.

42.4 An invoice is correctly rendered if:

(a) the amount claimed in the invoice is due for payment;

(b) the amount specified in the invoice is correctly calculated in accordance with the Contract;

(c) the invoice is set out in a manner that enables the Customer to ascertain which Product or Service the invoice covers and the respective Price, Licence Fee or Charge payable in respect of that Product or Service;

(d) the invoice is accompanied (where necessary) by documentation that provides evidence that the amount specified in the invoice is in accordance with the Contract;

(e) the invoice is addressed to the officer specified in the Official Order to receive invoices and identifies the relevant Official Order;

(f) the invoice is, where appropriate, certified as sales tax exempt; and

(g) where it is relevant and where the first account for payment is rendered, either the Certificate of Acceptance is attached, or the account is accompanied by, or contains evidence that the relevant Certificate of Acceptance has been issued or where no Certificate of Acceptance is required, evidence that the relevant Acceptance Criteria (if applicable) have been met.

42.5 If an invoice is found to have been rendered incorrectly after payment, any underpayment or overpayment shall be recoverable by or from the Contractor, as the case may be and, without limiting recourse to other available means, may be offset against any amount subsequently due by the Customer to the Contractor.

42.6 For the purposes of calculating any discount applicable under the Contract for settlement of accounts:

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(a) if payment of an invoice is to be made by cheque - the payment shall be deemed to have been made on the date on which the cheque is drawn by the Customer;

(b) if payment is to be made by electronic funds transfer - payment shall be deemed to have been made at the time the funds are despatched electronically;

(c) if payment is to be made by credit card - payment shall be deemed to have been made on the date on which the Customer signed the credit card voucher.

42.7 Without being under any liability for failure to do so, where the Customer returns an incorrectly rendered invoice to the Contractor, it shall promptly notify the Contractor of any action which the Customer considers the Contractor should take to correctly render the invoice.

43. Sales Tax and Import Duty

Where applicable, the Delegate shall, on request provide the Contractor with:

(a) an appropriate sales tax exemption certificate for a Product and for material for incorporation into that Product; and

(b) an appropriate certificate to facilitate duty free entry of a Product into Australia.

The necessary documentation shall be presented to the Delegate to allow completion of the certificate and for signature. Any duty paid on an imported Product which is subsequently supplied to the Customer is not claimable against the Customer.

44. Price Variations Under a Contract - Hardware Products

44.1 The price payable for a Hardware Product shall be:

(a) where delivery is agreed to be made within 90 days of the date of the Official Order being despatched and this date is specified in the Official Order as the delivery date - the price ascertained in accordance with Schedule 2 applicable at the date the Official Order is despatched, which price shall be set out in the Official Order; and

(b) where delivery is agreed to be made on a date that is more than 90 days after the Official Order is despatched and this date is specified in the Official Order as the delivery date - the price ascertained in accordance with the following formula:

Where:

RP = revised price payable;

PB = the price ascertained in accordance with Schedule 2 applicable on the date on which the Official Order was despatched;

E1 = relevant Australian (selling) exchange rate applicable when the Hardware Product was first included in Schedule 2;

E2 = relevant Australian (selling) exchange rate applicable on the delivery date specified in the Official Order;

IC = the fraction of the Base Cost subject to variation in accordance with movements in the relevant exchange rate notified in accordance with subclause 3.8 and set out in Schedule 2;

and where, if no fraction has been provided by the Contractor, the fraction shall be deemed to be zero.

44.2 In the circumstances referred to in paragraph 44.1(b), the Official Order shall specify:

(a) the price ascertained in accordance with the Schedule 2 applicable on the date on which the Official Order is despatched; and

(b) a reference to the fact that this price is to be revised in accordance with paragraph 44.1(b).

45. Price Variations Under a Contract - Other Products and Services

45.1 The Licence Fee or Charge payable by the Customer to the Contractor shall be as specified in the Official Order and calculated in accordance with Schedule 2.

45.2 Where the Customer has agreed to pay a Licence Fee or a Charge on a periodic basis, the Licence Fee or Charge shall, unless otherwise specified in the Official Order, be calculated in accordance with Schedule 2 as varied in accordance with clause 7 at the time that the periodic payment is due.

46. Travel Expenses

Where a Product is to be installed or tested or a Service is to be provided by the Contractor at a place specified in the Official Order as a remote location to which reasonable travel expenses apply, reasonable travel expenses as specified in the Official Order will be payable by the Customer.

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47. Unconditional Financial Undertaking (Customer)

47.1 Subclauses 47.2 to 47.6 do not apply unless it is specified in the Official Order that they do apply.

47.2 If required by the Customer, the Contractor shall provide Security in the form of an unconditional and irrevocable financial undertaking from a guarantor approved in writing by the Customer. The Security provided shall be substantially in the form appearing in Schedule 11 and shall be provided at the date and for a maximum aggregate sum specified in the Official Order.

47.3 Notwithstanding the provisions of clause 42, a Customer shall not be obliged to make any payments under the Contract, whether or not such payments are due, prior to receipt of the Security duly executed, and where applicable stamped, in accordance with subclause 47.2.

47.4 All charges incurred by the Contractor in obtaining and maintaining the Security pursuant to subclause 47.2 shall be met by the Contractor.

47.5 Upon performance of part of the Contract to the satisfaction of the Customer, the Contractor may request the Customer to consent to the discharge of the Security and the substitution of another Security in substantially the same form but for a lesser maximum aggregate sum. The Customer shall not unreasonably withhold its consent to the substitution where the part performance of the Contract has reduced the risk for which the Security was originally provided.

47.6 If, on the expiration of a period of 28 days after the end of the Warranty Period, there are no outstanding breaches by the Contractor of its obligations under the Contract, the Delegate shall, within seven (7) days of the end of that 28 day period, release the Security provided pursuant to this clause 47 by notifying the guarantor that the Security is no longer required.

48. Performance Guarantee (Customer)

48.1 Subclause 48.2 does not apply unless it is specified in the Official Order that it does apply.

48.2 If requested by the Customer, the Contractor shall lodge with the Customer substantially in the form appearing in Schedule 12, and by a guarantor approved in writing by the Customer, a properly executed Performance Guarantee.

49. Customer Insurance Requirements

49.1 In addition to clause 16 and without limiting the Contractor’s obligations under this Agreement, the Contractor shall, and shall ensure that any sub-contractor will, be and remain a beneficiary under or arrange and maintain with a reputable insurance company such other insurances as are specified in the Official Order, on the terms, and to the amounts, set out in the Official Order in respect of the liability of the Contractor that may arise from the performance of the Contract.

49.2 Where the Customer requires:

(a) the insurance policy to be taken out in the joint names of the Customer and the Contractor; or

(b) the name of the Customer to be noted as joint insured on the relevant insurance policy;

this requirement shall be specified in the Official Order.

49.3 The Contractor shall, on request, produce to the Customer satisfactory evidence that the Contractor has effected and maintained a particular insurance policy.

49.4 Where the Customer considers that additional insurance or increased limits to existing insurance may be necessary to cover occurrences and liabilities that may arise during the performance of the Contract, the Customer and the Contractor shall consult about these matters, including, in particular, about the level of premium payable.

49.5 Where, after consulting with the Contractor, the Customer requires the Contractor to take out a particular policy of insurance (in addition to the policies of insurance already held by the Contractor), or to increase the level of cover under an existing policy, the Contractor shall do all things necessary to obtain that additional policy, or to take out that additional cover, as the case may be, in accordance with the Customer's requirements (including, if required by the Customer, taking out the policy in the joint names of the Customer and the Contractor, or having the name of the Customer noted in the policy as a joint insured) and the Customer shall reimburse the Contractor the extra premiums the Parties agree are required to comply with the Customer's request.

49.6 The insurance referred to in subclause 49.5 shall be effected from the date required by the Customer and shall be maintained for the period required by the Customer.

50. Escrow of Source Code


50.2 For the purpose of enabling the Customer to maintain, modify or correct an item of software specified in Schedule 2 ("the Escrow Software") in the event that the Contractor is unable or unwilling to support that software, the Contractor shall, if required by the Customer:

(a) arrange for itself, the Customer and an Escrow Agent approved by the Customer to enter into an escrow agreement substantially in the form set out in Schedule 13 for the purpose of enabling a copy of the current source code of that software, and its associated Documentation, to be held in escrow with that Escrow Agent; or

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(b) arrange for the Customer to become a party to an existing escrow arrangement where there is an escrow arrangement already in place covering the Escrow Software which the Customer regards as a satisfactory arrangement.

50.3 The costs of the escrow arrangement shall be agreed in writing between the Parties.

50.4 The Contractor shall consult with, and comply with the reasonable directions of the Customer in any negotiations with the Escrow Agent arising under subclause 50.2.

51. Conduct of the Contract

General

51.1 The Contractor shall, at no additional cost to the Customer, establish all necessary facilities for the effective conduct and management of its responsibilities under the Contract.

51.2 The Contractor shall, in carrying out the Contract, comply with all reasonable directions of the Delegate.

51.3 The Contractor shall co-operate fully with the Customer and provide all assistance reasonably required by the Customer, and any other contractor that may be associated directly or otherwise with the Contract, for the purpose of ensuring the timely progress and performance of the Contract.

Contractor Management Services

51.4 To the extent that it is specified in the Official Order, the Contractor shall :

(a) provide Contractor Management Services; or

(b) if reasonably required by the Delegate, supply written progress reports to the Delegate at intervals agreed in writing between the Parties and in the form specified in writing (after consultation with the Contractor) by the Delegate.

Management Committee


51.6 The Parties shall establish a Management Committee by not later than the date on which the Contract is formed.

51.7 The Management Committee shall, unless the Parties agree otherwise in writing, consist of:

(a) the Customer's project officer;

(b) the Contractor's project manager; and

(c) such other persons as specified in the Official Order.

51.8 The persons referred to in subclause 51.7 or their authorised representatives, shall each attend the meetings of the Management Committee unless otherwise agreed between the Parties.

51.9 The Management Committee shall:

(a) review and monitor progress under the Contract and report thereon to the Delegate; and

(b) carry out such other functions as are set out in the Contract or agreed in writing between the Parties.

51.10 The Management Committee shall meet weekly, or at such times as agreed between the Parties, at the Customer's offices (unless the Parties agree otherwise) at a time agreed between the Parties.

51.11 All persons, including the members of the Management Committee, who attend the meetings of the Committee, shall be suitably qualified and informed in relation to the matters to be considered by the Committee and be able to provide sufficient information on a relevant matter to the Committee to enable the Committee to properly assess progress under the Contract.

Diary


51.14 The Delegate shall, at intervals of not more than seven (7) days, prepare a diary ("the Diary") which shall be available at all reasonable times for inspection by the Contractor.

51.15 The next working day after making an entry in the Diary the Delegate shall forward to the Representative a copy of that entry. If the Representative agrees with the statement of facts recorded by the Delegate, the Representative shall sign the Diary within seven (7) days of receiving a copy of the entry.

51.16 If the Representative disagrees with the statement of facts recorded by the Delegate, the Representative shall record its version of facts in the Diary. If the Representative does not record a disagreement with the facts stated in the Diary within seven (7) days, the Diary shall be prima facie evidence of the facts recorded therein.

51.17 The Diary shall not operate as a modification, variation or amendment to the Contract.

Restriction on engaging personnel of other Party

51.18 Subject to clause 26, the Customer and the Contractor agree that neither Party shall, without prior agreement of the other Party, engage, employ or induce or cause a third party to induce the other Party's personnel engaged in the performance of the Contract to enter into a contract for service or a contract of employment with it.

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51.19 The restriction referred to in subclause 51.18 shall apply during the performance of the Contract and for a period of twelve months thereafter, or as the Parties otherwise agree.

52. Customer's Obligations - Processing Environment and Customer Data

52.1 The Customer shall take all reasonable measures to maintain the processing environment as specified in the Contract.

52.2 The Customer shall take all reasonable measures in accordance with currently accepted commercial practice to protect the Customer's data (including but not limited to business data and programs) including by:

(a) making adequate and timely back-up copies of the data and programs and maintaining these in a secure manner;

(b) where the Customer operates a critical on-line system including business transactions - maintaining summary back-up records of transactions so that the Customer's data may be restored promptly to the nearest practicable time preceding the failure of that on-line system; and

(c) providing and testing contingency procedures to enable the Customer to continue to perform its principal business activities in the event of the failure of the System.

52.3 The Customer shall ensure that any staff of the Customer required to install or use a Product or operate the System equipment are, if necessary with the assistance of the Contractor and for the costs specified in the Official Order, properly trained in such installation and use, and that those staff install and use the Product or operate the System equipment in accordance with reasonable advice (if any) given by the Contractor.

53. Customers Obligations - Site Conditions

53.1 The Customer shall be responsible for maintaining those conditions at the Site that are specified as the Customer’s responsibility in the relevant provisions of the Contract Specifications in accordance with the requirements contained in those Specifications and if the conditions are not so maintained, any resulting Hardware Downtime or System Downtime shall be deemed to be beyond the reasonable control of the Contractor.

53.2 The Contractor shall keep the Customer informed of those matters which come to the Contractor's attention which, in the Contractor's opinion, could result in the necessary conditions not being maintained at the Site.

54. Customer Supplied Items (CSI)

54.1 The Customer shall supply the CSI set out in Schedule 5 and annexed to the Official Order to the Contractor at the times and places stated in the Project, Implementation and Payment Plan and the Contractor shall incorporate the CSI into the Product, System or the Deliverables or utilise the CSI in the development, delivery, testing, or installation of the Product, System or the Deliverables or in performance of the Service in accordance with the Contract Specifications.

54.2 CSI shall at the time of its supply by the Customer to the Contractor comply with the specifications, if any, set out in the Official Order.

54.3 Where human resources constitute CSI in whole or in part the Contractor shall ensure a safe system of work where such human resources are under the control and direction of the Contractor.

54.4 Where CSI constitute premises or equipment, those premises or that equipment shall be safe for the purposes for which they are being used, provided those premises and that equipment are used properly by the Contractor.

54.5 Subclauses 54.6 to 54.10 do not apply to parts of the CSI which are human resources.

54.6 CSI remain the property of the Customer. The Contractor shall not use CSI other than for the purposes of the Contract without the prior written approval of the Customer. Except with the consent of the Delegate, the Contractor shall not part with possession of CSI nor create or suffer to be created any lien, charge or mortgage over any CSI or any part of it.

54.7 The Contractor shall take all reasonable care of all CSI and with the accounting, preservation, installation or handling thereof and shall indemnify the Customer for any loss or destruction of, or damage to, the CSI caused by the act or omission of the Contractor, its employees, agents or sub-contractors and shall promptly inform the Customer of any loss, destruction or damage to the CSI. The Contractor shall comply with any instruction of the Customer for preservation, forwarding or disposal of any damaged part of CSI.

54.8 CSI which is not required for use in or with the Product or the Deliverables shall be returned to the Customer by the Contractor when it is no longer required for the purposes of the Contract.

54.9 Provided the Contractor complies with its obligations under subclause 54.7, the Customer shall be responsible for the repair or replacement of CSI which no longer comply with the specifications referred to in subclause 54.2, within a reasonable time after such non-compliance has been reported to the Delegate and such damaged or unserviceable CSI has been returned to the Customer.

54.10 Other than as provided in the Contract, the Contractor shall not modify CSI without the prior approval of the Delegate.

54.11 The Contractor shall pay in respect of CSI the costs, if any, set out in the Official Order.

55. Acceptance Testing (Product)

Acceptance Testing Requirement

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55.1 Acceptance Tests are not required to be carried out in respect of a Product unless the Parties agree and it is specified in the Official Order that Acceptance Tests are required.

55.2 Acceptance Tests are required to be carried out in respect of a Product that consists of or contains modified or developed software supplied by the Contractor.

55.3 Where Acceptance Tests are required to be carried out in respect of a Product, they shall be carried out in accordance with this clause 55 and for the charges (if any) specified in the Official Order.

55.4 Where there are no Acceptance Tests specified in respect of a Product, the AAD for that Product shall be two (2) Normal Working Days after the date on which the Product is received by the Customer.

Acceptance Test Data

55.5 Unless otherwise agreed between the Parties, the Customer shall commence and diligently pursue the preparation of, and provide to the Contractor, the Acceptance Test Data by the date specified in the Project, Implementation and Payment Plan, or where there is no such Plan prior to the commencement of the Acceptance Tests.

55.6 The Acceptance Test Data prepared by the Customer shall be reasonably representative of the data to be processed by the Product.

55.7 The Contractor may only use the Acceptance Test Data to enable it to fulfil its obligations to the Customer in accordance with the Contract.

55.8 On completion of the Acceptance Tests the Contractor shall deal with the Acceptance Test Data as directed by the Delegate.

Acceptance Tests

55.9 The Acceptance Tests for a Product shall consist of:

(a) the functional tests (if any) required by the Customer to demonstrate compliance with subclause 55.23, which tests shall be proposed by the Contractor and agreed by the Customer in accordance with subclause 55.10 (in this clause 55. called "Functional Tests");

(b) the operational tests (if any) required by the Customer to demonstrate compliance with subclauses 55.26 and 55.27, which tests shall be devised by the Customer in accordance with subclauses 55.24 and 55.25 after consultation with the Contractor (in this clause 55 called "Operational Tests"); and

(c) any supplementary tests required by the Customer pursuant to subclause 55.34 (in this clause 55 called "Supplementary Tests").

55.10 Not less than 14 days before the Acceptance Tests commence, the Contractor shall supply the Delegate with a full description of the programs and procedures proposed by the Contractor to satisfy the Functional Tests. If the Customer has any objections to those programs and procedures it shall notify the Contractor promptly of any alterations it reasonably requires to be made to those tests before proceeding with the Acceptance Tests and the Contractor shall not unreasonably refuse to amend those programs and procedures to take account of the Customer's reasonable requirements.

55.11 Unless otherwise agreed in writing between the Parties or specified in this clause 55, all the Acceptance Tests shall be carried out to demonstrate that the Product complies with the Customer's Functional Specifications and the Contractor's Specifications.

Acceptance Testing Period

55.12 Before commencing the Acceptance Tests, the Contractor shall ensure that the Product is ready to undergo the Acceptance Tests and that any equipment provided by the Contractor to be used for the Acceptance Tests will perform satisfactorily.

55.13 The Acceptance Tests shall commence on the date specified in the Official Order or, if no date is so specified, as agreed between the Parties.

55.14 Where the Contractor is to carry out Acceptance Tests in respect of the Product, the Contractor shall give the Delegate such prior notice as is set out in the Official Order (or such other period of notice as may be later agreed in writing between the Parties) of the date on which it is ready to undertake testing.

55.15 The Acceptance Tests shall be run over such number of hours on each Normal Working Day as is specified in the Official Order or agreed in writing with the Contractor after the Official Order is despatched.

55.16 Functional Tests and Operational Tests shall continue for the respective periods specified in the Official Order or agreed between the Parties.

Administration

55.17 The Acceptance Tests in respect of the Product shall be carried out by the Contractor unless it is specified in this clause 55 or the Official Order or otherwise agreed in writing between the Parties that any Acceptance Tests are to be performed by the Customer in which case the Customer shall perform those Acceptance Tests.

55.18 Before the Acceptance Tests begin, the Delegate and the Contractor shall each nominate one or more representatives to be present, or if agreed between the Parties, available for consultation, throughout the Acceptance Testing Period.

55.19 Subject to the provisions of this clause, the Customer's representative (in this clause 55 called "the Supervisor") shall be responsible for:

(a) defining after consultation with the Contractor the test schedule;

(b) recording the level of functionality, compatibility, resilience, reliability and performance achieved in testing;

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(c) requesting the Contractor to verify, diagnose or correct any malfunction, Defect or suspected error in the Product or test programs;

(d) obtaining printed evidence of suspected faults;

(e) recording faults, and actions taken to remedy them; and

(f) ensuring that any of the Customer's equipment to be used in the Acceptance Tests will be made available for the Acceptance Tests and will perform satisfactorily.

55.20 The Contractor's representative shall be responsible for:

(a) providing all Documentation for the Contractor's test programs and procedures 14 days prior to commencement of the Functional Tests;

(b) demonstrating to the Supervisor that the Functional Tests have been satisfactorily performed;

(c) the verification, diagnosis and correction of any malfunction, Defect or suspected error in the Product or test programs;

(d) making available to the Supervisor before 1600 hours on the following Normal Working Day, written details of any fault found, its cause, and corrective action taken; and

(e) in the case of Hardware, Preventive Maintenance of the Hardware in accordance with the Preventive Maintenance Schedule.

55.21 Where the Customer is carrying out any Acceptance Tests, the Contractor shall, if required by the Customer, co-operate in carrying out those Acceptance Tests.

55.22 The Delegate shall determine whether the Contractor's or the Customer's staff shall operate the Product during the Acceptance Tests.

Functional Tests

55.23 To meet the Functional Tests in respect of the Product, the Contractor must satisfy the Delegate that:

(a) the Product exhibits the level of functionality, compatibility, resilience, reliability and performance claimed for it in the Contractor's Specification;

(b) the Product has been correctly installed into the System in accordance with the Contract; and

(c) the Product is compatible with all other elements of the System.

Operational Tests

55.24 During the Operational Tests, the Product:

(a) may be installed into the System or a test system which simulates the System (or part thereof);

(b) shall be operated in an operational running environment or a simulated running environment; and

(c) shall be operated using the Acceptance Test Data where this is provided by the Customer pursuant to subclause 55.5.

55.25 The processing to be undertaken on the Product for the Operational Tests shall be at the discretion of the Delegate.

55.26 To meet the Operational Tests in respect of the Product, the Contractor must satisfy the Delegate that:

(a) the Product exhibits the level of functionality, compatibility, resilience, reliability and performance specified in the Contract Specifications;

(b) the Product interoperates with the System; and

(c) the System, when interoperated with the Product, exhibits the level of functionality, compatibility, resilience, reliability and performance specified in the Contract Specifications.

55.27 In respect of Hardware, during the Operational Tests, each hardware Product and the Minimum System Configuration must operate at an availability of 98 per cent, or such greater level of availability as may be specified in the Official Order, as calculated in accordance with the following formula:

Availability = (Operational Time - Downtime) x 100 Operational Time

Where:

"Operational Time" means total time scheduled by the Delegate for the tests less agreed scheduled Preventive Maintenance; and

"Downtime" means Hardware Downtime or System Downtime, as the case requires, provided that, for the purpose of this subclause, a reference in subclause 96.4 to the Customer's productive use of the Hardware or the System shall include simulated production running under the Operational Tests.

Maintenance during Acceptance Testing Period

55.28 During the Functional Tests period, any Preventive Maintenance or Support Service in respect of the Product performed by the Contractor shall be performed at the times specified by the Delegate.

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55.29 During the Operational Tests period, maintenance and support shall reflect the level of maintenance and support expected for normal operations.

Test Environment and Consumable Supplies

55.30 The Customer shall provide all elements of the site environment and the operational environment for the purposes of conducting the Acceptance Tests, except those elements to be provided by the Contractor as are specified in the Official Order.

55.31 The Customer shall supply all consumable items of an agreed quality (such as printer paper and printer ribbons) and all magnetic tapes, disk packs and other similar off-line data storage media required for the Acceptance Tests.

Delay during Acceptance Testing

55.32 If the Contractor performs any repairs or corrects any Defects in respect of the Product, or replaces the Product, during the Acceptance Testing Period:

(a) the Delegate may require all or any Acceptance Tests in relation to that Product to be re-run;

(b) the Delegate may permit the Acceptance Testing Period to be extended to accommodate any delay arising directly from that repair, correction or replacement or any delay arising from maintenance and support during the Acceptance Testing Period agreed by the Delegate under subclause 55.28, or from the re-running of any Acceptance Tests under this subclause; and

(c) any additional costs in relation to the extension of the Acceptance Testing Period or the re-running of any Acceptance Tests under this subclause shall be borne by the Contractor.

55.33 In the event of power failure, air-conditioning failure or other causes outside the control of the Contractor:

(a) the Delegate shall approve an extension of the Acceptance Testing Period to accommodate any delays caused directly as a result of those circumstances;

(b) the Customer shall pay any additional costs reasonably incurred by the Contractor if the Contractor so requests, and substantiates the costs, in writing; and

(c) the Contractor shall ensure that the Product is ready to resume or recommence Acceptance Testing when conditions are again satisfactory and stable.

Supplementary Tests

55.34 The Customer may at any time during the Acceptance Testing Period require the Contractor to carry out additional or different tests being the Supplementary Tests which are reasonably required in order to establish whether the Product complies with the Contract Specifications.

55.35 Subject to subclause 55.36, the costs of any Supplementary Tests shall be paid for by the Customer.

55.36 Where the Supplementary Tests establish that the Product does not comply with the Specifications referred to in subclause 55.34, the costs of such of those Supplementary Tests as were reasonably required to establish non-compliance shall be borne by the Contractor.

Certificate of Acceptance

55.37 Subject to subclause 55.4 no Product shall be deemed to have been accepted until a Certificate of Acceptance has been issued in respect of that Product.

55.38 Within two (2) Normal Working Days of completion of the Acceptance Tests, the Delegate shall issue a Certificate of Acceptance for the Product specifying the date of issue of that Certificate, but that Certificate shall not be issued unless the Delegate is satisfied on reasonable grounds that the Acceptance Tests have been passed.

55.39 Where the Acceptance Tests for the Product have not been completed by the expiry of the Acceptance Testing Period through the fault of the Contractor or its Product, the Product shall be deemed to have failed the Acceptance Tests.

Failure to pass Acceptance Tests

55.40 If in the opinion of the Delegate the Acceptance Tests demonstrate that the Product is not in accordance with the Contract then the Delegate may, without prejudice to the Customer's other rights and remedies, by written notice to the Contractor, elect at the Customer's discretion to fix a further Acceptance Testing Period for carrying out further Acceptance Tests on the Product on the same terms and conditions as the initial Acceptance Tests, save that all costs which the Customer may incur as a result of such tests which are substantiated to the Contractor, shall be reimbursed by the Contractor.

55.41 If a Product fails any tests provided for in this clause 55 then the Customer shall be entitled to:

(a) accept that Product subject to a reasonable reduction in the Price, Licence Fee or Charge as the case may be for that Product;

(b) by notice in writing to the Contractor, reject that Product; or

(c) accept the Product “as is” subject to the Contractor completing at its cost a set of procedures (eg “work-around”) required by the Delegate.

55.42 If the Customer rejects the Product in accordance with subclause 55.41, the Customer may either return the Product to the Contractor or by notice in writing to the Contractor, require the Contractor to remove that Product.

55.43 Where the Customer requires removal of the Product pursuant to subclause 55.42, the Contractor shall at its expense, de-install and remove that Product within 14 days of that rejection.

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55.44 No Price, Licence Fee or Charge as the case may be shall be payable in respect of a Product rejected pursuant to this subclause 55.41, but if any Price has been paid therefor it shall be refunded in full within fourteen (14) days of that rejection.

56. Intellectual Property Rights in Contract Material

56.1 Subject to this clause, the title to, and Intellectual Property Rights in, all New Contract Material shall vest in the Customer in accordance with subclauses 56.2 and 56.3.

56.2 Copyright (including future copyright) in all New Contract Material, including each and every stage of design and construction thereof, is hereby assigned by the Contractor to the Customer.

56.3 Title to, and Intellectual Property Rights (other than copyright) in all New Contract Material, including each and every stage of design and construction thereof, shall on its creation be transferred and assigned to the Customer without need for further assurance.

56.4 The Contract does not affect the Intellectual Property Rights in Existing Contract Material, but unless otherwise agreed in the Official Order the Contractor hereby grants and shall ensure that relevant third parties grant to the Customer, a non-exclusive, non-transferable licence:

(a) to use, reproduce and adapt for its own use; and

(b) where specified in the Project, Implementation and Payment Plan, to perform any other act with respect to copyright and to manufacture, sell, hire or otherwise exploit a product or process, or to provide a service, or to license any third party to do any of those things in respect of;

all those Intellectual Property Rights but only as part of the Contract Material (and of any future development of that Material).

56.5 The right and title to the Intellectual Property Rights in the Contract Material specified in Part A of the Project, Implementation and Payment Plan are hereby assigned to the Contractor on the terms and conditions, including price, specified or identified in that Part.

56.6 The Contractor hereby grants to the Customer a non-exclusive, non-transferable, licence, to use, reproduce and adapt that Contract Material specified in Part A of the Project, Implementation and Payment Plan.

56.7 The Parties shall co-own the Intellectual Property Rights in the Contract Material specified in Part B of the Project, Implementation and Payment Plan on the terms and conditions (including price and accounting) described in that Plan.

56.8 The Customer hereby grants to the Contractor a non-exclusive, non-transferable licence to use the Contract Material specified in Part C of the Project, Implementation and Payment Plan on the terms and conditions (including price) described in that Plan.

56.9 Subclauses 56.10 to 56.12 shall not apply to the Contract Material specified in Part A of the Project, Implementation and Payment Plan.

56.10 On the expiration or earlier termination of the Contract, the Contractor shall deliver to the Customer all Contract Material together with all copies thereof.

56.11 The Parties shall execute all documents and do all acts and things required for the purposes of giving effect to this clause, at the Customer’s costs unless otherwise agreed.

56.12 The Contractor shall ensure that the Contract Material is used, copied, supplied or reproduced only for the purposes of the Contract.

56.13 Where the Customer modifies Contract Material to commercialise it or to use it for a purpose other than the purpose for which it was originally created, the Customer indemnifies the Contractor against any costs, claims, actions and expenses resulting from the use of the Contract Material as so modified.

56.14 This clause shall survive termination of the Contract.

57. Intellectual Property Rights in Tools, Object Libraries and Methodologies

57.1 The right and title to Intellectual Property Rights in software tools, Object Libraries and methodologies created or enhanced by the Contractor during the performance of the Contract shall subsist in the Contractor, except where it is otherwise specified in the Official Order.

57.2 The Contractor shall notify the Customer of the software tools, Object Libraries and methodologies which are created or enhanced by the Contractor during the performance of the Contract (and which remain the property of the Contractor) at the time of creation or enhancement, including details of the nature and purpose of the tool.

57.3 The Contractor hereby grants to the Customer a non-exclusive, non-transferable, licence without additional cost to the Customer to use such software tools, Object Libraries and methodologies notified to the Customer pursuant to subclause 57.2.

58. Contractor's Personnel

58.1 All persons (in this clause referred to as "designated persons") whom the Contractor proposes:

(a) will carry out work or perform duties under the Contract; and

(b) will be required, while carrying out some or all of that work or performing some or all of those duties, to:(i) enter secure areas in the Customer's buildings or places;(ii) work with the Customer's personnel for extended periods;

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(iii) have access to, or be responsible for the physical custody of, official, classified, sensitive or commercial information, or documents or valuable assets belonging to the Customer or a third party; or

(iv) hold a particular kind of security clearance the details of which have been notified to the Contractor by the Customer;

must be authorised by the Customer under this clause to carry out that work or perform those duties.

58.2 The Contractor or a designated person shall provide such information as the Customer from time to time requests for the purpose of allowing the Customer to undertake investigations for the purposes of this clause.

58.3 The Contractor shall use its best endeavours to ensure that only persons who:

(a) are properly qualified for the tasks they are to perform; and

(b) will act, in all the circumstances, in a fit and proper manner;

are notified to the Customer as designated persons.

58.4 The Customer shall carry out its investigations under this clause in an expeditious manner.

58.5 The Customer shall promptly notify the Contractor in writing of:

(a) the names of the designated persons it authorises to carry out work or perform duties under the Contract (in this clause referred to as an "authorised person"), the type and level of clearance given in respect of each of those persons and the date from which, or the period during which, those clearances will be effective; and

(b) the names of the designated persons it refuses to authorise to carry out such work or perform such duties;

and the Contractor shall sign a copy of that notice, and return it to the Customer as soon as possible as acknowledgment of the contents of the document.

58.6 The Contractor shall advise the Customer promptly in writing of any change in the circumstances of an authorised person that, in the Contractor's reasonable opinion, is likely to affect the Customer's assessment of the person as an authorised person.

58.7 The Customer may at any time and without coming under any liability whatsoever, withdraw, limit or suspend its authorisation in respect of a particular authorised person and shall so notify the Contractor.

58.8 The Customer may, at its absolute discretion, give notice requiring the Contractor to remove personnel, including Specified Personnel, from work in respect of the Contract. The Contractor shall promptly arrange for the removal of such personnel and their replacement with personnel acceptable to the Customer.

58.9 For the purpose of this clause, each Party shall, while the Contract is in force:

(a) have available a person to act as a liaison officer in respect of all matters arising under this clause; and

(b) keep the other Party informed of the name of their liaison officer.

58.10 For the purposes of this clause, unless the contrary intention appears:

(a) a reference to "the Customer" includes a reference to the Customer's security adviser (if any) or the Delegate, as the case requires; and

(b) a reference to "the Contractor" includes a reference to a sub-contractor of the Contractor.

59. Specified Personnel

59.1 The Contractor shall ensure that the Specified Personnel undertake work in respect of a Service in accordance with the terms of the Contract.

59.2 Where Specified Personnel are unable to undertake work in respect of a Service, the Contractor shall notify the Customer immediately and the Contractor shall, if so requested by the Customer, provide replacement personnel acceptable to the Customer at no additional charge and at the earliest opportunity.

59.3 Where the Delegate is of the opinion that the Specified Personnel are unable to perform a Service in accordance with the Contract due to illness or other incapacity, the Delegate may invoke the procedure set out in clause 59.2.

59.4 Specified Personnel may with the prior approval of the Delegate (on such conditions, if any, as the Delegate thinks fit) be absent from the performance of the Service.

59.5 The Contractor shall, if required by the Delegate, promptly provide temporary substitute personnel approved by the Delegate to replace any Specified Personnel absent pursuant to subclause 59.4 on such terms and conditions, including variation of rates, as the Parties may agree and, in the absence of agreement, as the Delegate reasonably requires.

59.6 The costs incurred by the Contractor in providing temporary substitute personnel or because of the absence of Specified Personnel shall be the responsibility of the Contractor.

59.7 If the Contractor fails to provide acceptable replacement personnel, the Customer may treat the failure as a default for the purposes of clause 78.

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60. Sub-Contracting

60.1 The Contractor shall not sub-contract the whole or any part of the work under the Contract other than to a specified sub-contractor referred to in subclause 60.2 or an approved agent referred to in clause 18, except:

(a) with the prior written consent of the Customer (which shall not be unreasonably withheld); and

(b) on such conditions as the Customer thinks fit.

60.2 The Contractor shall enter into a sub-contract with each of the sub-contractors specified in Schedule 14 to supply the Products or provide the Services specified in that Schedule.

60.3 The Contractor shall not be relieved of any of its liabilities or obligations under the Contract by entering into the sub-contracts referred to in subclauses 60.1 and 60.2 and the Contractor shall be liable to the Customer for the acts, defaults and neglects of any sub-contractor or any employee or agent of the sub-contractor as fully as if they were the acts, defaults or neglects of the Contractor or the employees or agents of the Contractor.

60.4 The Contractor shall be responsible for ensuring the suitability of a sub-contractor for the work proposed to be carried out and for ensuring that the work performed by the sub-contractor meets the requirements of the Contract.

60.5 Prior to a person commencing work in respect of the Contract Material, the Contractor shall obtain from that person, and provide to the Customer, a written assignment from the person to the Customer of the Intellectual Property Rights created as a result of the person performing that work. This subclause does not apply to a person who is an employee of the Contractor or a sub-contractor.

60.6 The Contractor shall ensure that a sub-contractor is aware of all the terms and conditions of the Contract relevant to the sub-contractor's part in the performance of the Contract. If requested to do so by the Delegate, the Contractor shall seek to obtain from a sub-contractor a signed statutory declaration substantially in the form appearing at Schedule 15 prior to the commencement of any work under this Contract by that sub-contractor and, upon request by the Delegate, shall provide any statutory declaration so obtained to the Delegate.

61. Site Specification and Site Preparation

61.1 This clause 61 does not apply unless it is agreed between the Parties and specified in the Official Order that it does apply.

61.2 The Contractor shall, if a Site Specification is not annexed to the Official Order, inspect the Site and provide the Delegate with a suitable Site Specification within a reasonable time after such inspection to enable the preparation of the Site.

61.3 If the Customer has any objections to the Contractor's Site Specification it shall notify the Contractor promptly of any alterations it reasonably requires to be made to the Site Specification. The Contractor shall not unreasonably refuse to amend the Site Specification to take account of the Customer's reasonable requirements.

61.4 Unless otherwise agreed in the Official Order, the Customer shall be responsible for undertaking any site preparation at the Site in accordance with the Site Specification including any structural or partitioning modifications to the Site and any other engineering works made necessary and arising from the Site Specification.

61.5 Where additional work is required to prepare the Site because of a deficiency, error or omission in the Site Specification prepared by the Contractor, the Customer shall give the Contractor the first option to undertake such work at the Contractor's own cost. If the Contractor does not undertake the work or, having undertaken the work, does not perform the work to the satisfaction of the Customer, the work may be undertaken or arranged by the Customer and the Contractor shall reimburse the Customer the costs of that work.

62. Access to Site

62.1 The Customer shall allow the Contractor reasonable access to the Site, after the Access Date for the purpose of meeting its obligations under the Contract, the details of such access to be notified in writing to the Contractor.

62.2 The Customer may, at any time and for any period, refuse the Contractor or any sub-contractor, or any employee or agent of either of them, access to the Customer's premises or data and where by reason of such refusal the Contractor is unable to perform its obligations under the Contract, the Customer shall, as soon as practicable again permit access to those premises or give the Contractor access to relevant data, as the case requires.

62.3 Where the actions of the Customer prevent the Contractor from having access to the Site, in addition to any other rights which have accrued or might accrue, the Contractor’s obligations under the Contract so prevented from being satisfied shall be suspended during such period.

62.4 In appropriate circumstances the Customer shall give reasonable prior notice in writing to the Contractor to enable the Contractor to vacate the relevant areas.

63. Access to Contractor's Premises

The Contractor shall, where required for the purposes of the Contract, at all reasonable times permit officers authorised by the Customer to have access to the premises of the Contractor and, where requested by the Customer, arrange for access to any sub-contractor's premises for purposes associated with the Contract.

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64. Documentation

64.1 The Contractor shall, when the Product is supplied to the Customer and for the purposes of enabling the proper use of the Product, make available free to the Customer at least one, and such other number of comprehensive operating manuals, reference materials and other relevant publications and aids specified in the Official Order or as the Contractor usually makes available free to its other Customers.

64.2 The Contractor shall supply to the Customer, at the price set out in Schedule 2, (or where no price is set out, at a price as agreed pursuant to paragraph 4.1 (b)), such additional copies of the Documentation as the Customer specifies in the Official Order or as is agreed from time to time between the Parties.

64.3 The Documentation must be:

(a) of a reasonable standard in terms of its presentation, accuracy and scope;

(b) the most current and up-to-date version available; and

(c) in the English language;

and all key terms, words and symbols must be adequately defined.

64.4 If the correction of Defects or faults in the Product necessitates an amendment to the Documentation, the Contractor shall supply such number of copies of the amended Documentation (or the amendments to the Documentation) to the Customer as is necessary to update the Customer's existing Documentation within 90 days of the correction or within a shorter period reasonably specified by the Delegate if in all the circumstances the Customer requires copies of those amendments within that shorter period.

64.5 The Contractor shall amend inaccurate Documentation, and shall supply to the Customer within 90 days of being notified by the Customer that the Documentation is inaccurate, such Documentation to replace the inaccurate Documentation as the Customer requires.

64.6 If for any reasons other than those specified in subclauses 64.4 and 64.5, revisions of, and amendments and additions to the Documentation applicable to the Product are produced by the Contractor, the Contractor shall supply such number of copies of those revisions, amendments or additions to the Customer as the Customer requires to update its existing Documentation:

(a) within a reasonable time after those revisions, amendments or additions have been produced; and

(b) at no additional cost to the Customer where the Contractor provides such revisions, amendments or additions to its customers free of charge.

64.7 The Customer shall not make copies of the Documentation otherwise than in accordance with the provisions of the Copyright Act 1968 (Cth.).

65. Training

65.1 The Contractor shall provide, for the Charge (if any) specified in Schedule 2:

(a) the training reasonably required by the Customer to enable the Customer's personnel to properly operate the Product for the purposes of conducting the relevant Acceptance Tests; and

(b) the training (if any) specified in the Official Order, including training to enable the Customer to effectively use the Product.

65.2 The Contractor shall keep the Delegate advised of all relevant educational or training courses conducted by the Contractor or its sub-contractors relating to the Product or Service (if relevant) or their use, and of relevant materials relating to those courses.

66. Indemnity

66.1 Subject to the provisions of the Contract, the Contractor shall at all times indemnify, hold harmless and defend the Crown, the Contract Authority, the Customer and their respective officers, employees and agents (in this clause 66 referred to as "those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any suit, action or proceeding by any person against any of those indemnified where such loss or liability was caused by any wilful, unlawful or negligent act or omission of the Contractor, its employees, agents or sub-contractors in connection with the Contract.

66.2 Those indemnified shall not settle any claim or demand without obtaining the prior written consent of the Contractor, such consent not to be unreasonably withheld.

66.3 The Contractor's liability to indemnify those indemnified under subclause 66.1 shall be reduced proportionally to the extent that any act or omission of those indemnified contributed to the loss.

67. Intellectual Property Rights Issues

67.1 The warranty given under subclause 67.3 and the indemnity given under 67.4 does not extend to acts done by the Customer in relation to CSI.

67.2 The Customer warrants that acts done by the Contractor in relation to:

(a) CSI; and

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(b) Customer’s data provided to the Contractor for the purpose of Data Conversion and Migration Services;

do not infringe the Intellectual Property Rights of any person.

67.3 The Contractor warrants that acts done by the Customer in performance of its rights and obligations under the Contract in relation to a Product or in relation to the Contract Material, do not infringe the Intellectual Property Rights of any person.

67.4 Subject to the provisions of the Contract, the Contractor shall at all times indemnify, hold harmless and defend the Contract Authority, the Customer and their respective officers, employees and agents (in this clause 67 referred to as "those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of those indemnified arising from any suit, action or proceeding by any person against any of those indemnified where such loss or liability arose out of an infringement, or an alleged infringement, of the Intellectual Property Rights of any person, which occurred by reason of an act done by the Customer in performance of its rights and obligations under the Contract in relation to a Product or the Contract Material.

67.5 The Customer shall notify the Contractor in writing as soon as practicable of any claim or demand made, or action, suit or proceeding threatened or brought, against the Customer arising from the infringement or alleged infringement referred to in subclause 67.4.

67.6 After notice has been given under subclause 67.5 and upon the Contractor admitting its obligations under the indemnity in subclause 67.4 and, where requested by the Customer, lodging security in a reasonable amount with the Customer, the Customer shall:

(a) continue to keep the Contractor informed of all developments; and

(b) to the extent permitted by law, act in accordance with the reasonable directions of the Contractor in respect of those developments including in relation to applying for leave to withdraw from the litigation and in relation to the settlement of claims that do not result in litigation.

67.7 Where litigation is commenced against the Customer, the Customer shall, on leave being granted, withdraw from the litigation and the Contractor shall, in its own name and at its own expense, conduct the litigation.

67.8 Where leave is not granted to the Customer to withdraw from the litigation and for the Contractor to conduct the litigation in its own name, the Customer shall, upon the Contractor admitting its obligations under the indemnity in subclause 67.4, and where requested by the Customer, lodging security in a reasonable amount with the Customer, to the extent that it is permitted by law, defend, arbitrate, appeal, settle or otherwise conduct the litigation as the Contractor may from time to time reasonably direct.

67.9 If a final judgment or award is made against the Customer in the litigation referred to above, or if a settlement, which has been approved by the Contractor, is agreed with the plaintiff (in a situation where the Contractor is providing an indemnity under this clause 67), the Contractor shall:

(a) not less than five (5) working days before the date on which the Customer must pay the amount referred to in the judgment, award or settlement; or

(b) if no date for payment is fixed by that judgement, award or settlement, within seven (7) days of receipt of a notice in writing from the Customer that it intends to pay the amount referred to in that judgment, award or settlement;

pay to the Customer by bank cheque a sum equivalent to the sum that the Customer is required to pay.

67.10 The Contractor's consent to the settlement referred to in subclause 67.9 shall not be unreasonably withheld.

67.11 The Contractor shall pay to the Customer all other sums required to be paid under the indemnity provided under this clause 67 within seven (7) days of receipt of a written notice from the Customer requiring payment of those sums.

67.12 In the event of the failure of the Contractor to comply with this clause 67, the Customer shall, without prejudice to any other right of action or remedy which the Customer may have, have the right to suspend any payment due under the Contract until such claim, demand, suit, action or proceeding has been resolved.

67.13 In the event of any claim, demand, suit, action or proceeding being made, brought or threatened in respect of the infringement or alleged infringement of any of the rights referred to in subclause 67.4, the Contractor shall at its own expense and with the written consent of the Customer, use its best endeavours to:

(a) procure for the Customer, on reasonable commercial terms, the right to retain possession of, and to continue to use, the whole, or the relevant part, of the Product or Contract Material; or

(b) replace or modify the Product or Contract Material in a manner acceptable to the Customer such that the quality, performance or usefulness of the Product or Contract Material is not degraded and so that the infringement or alleged infringement ceases.

67.14 Subject to subclause 67.15, in the event that the Contractor is unable to do either of the things referred to in subclause 67.13, the Contractor shall, if so requested in writing by the Customer:

(a) in respect of a Hardware Product, repurchase the Product at the depreciated purchase price thereof using a five (5) years life straight line depreciation but such repurchase shall be without prejudice to any other claim the Customer may have against the Contractor for loss arising from the return of the Product; and

(b) in respect of Licensed Software, terminate the Licence Agreement and refund to the Customer the amount of the Licence Fee that on a pro rata basis is attributable to the balance of the period of the terminated Licence Agreement.

67.15 Where the terminated Licence Agreement referred to in paragraph 67.14(b) granted a perpetual licence, that licence shall, for the purposes of that paragraph, be deemed to be for a period of seven (7) years.

67.16 Where:

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(a) in all the circumstances it is reasonable for the Customer to continue to possess and use the infringing Product or Contract Material; and

(b) the Contractor has been unsuccessful under subclause 67.13;

the Customer shall, if it has the power to do so under the legislation referred to in subclause 67.17, and after consulting with the Contractor, reach agreement with the owner of the Intellectual Property Rights affected by the Customer's possession and use of the Product or Contract Material in relation to the Customer's continued possession and use of that Product or Contract Material, and in this case the indemnity in subclause 67.4 shall cover the payments made by the Customer to that owner under the relevant legislation and the costs incurred by the Customer in reaching that agreement.

67.17 For the purposes of this clause, "infringement" includes unauthorised acts which would, but for the operation of section 163 of the Patents Act 1990 (Cth.), section 40A of the Designs Act 1906 (Cth.), section 183 of the Copyright Act 1968 (Cth.) and section 25 of the Circuit Layouts Act 1989 (Cth.) (or any sections that replace those sections from time to time), constitute an infringement.

68 Liability

68.1 The liability of a Party to the other Party for breach of the Contract, or in tort, or for any other common law or statutory cause of action arising out of the operation of the Contract, shall be determined under the relevant law in Australia that is recognised, and would be applied, by the High Court of Australia.

68.2 The liability of the Contractor for loss of, or damage to, the data of the Customer shall be reduced proportionally to the extent of the Customer's failure to comply with its obligations and responsibilities under clause 52, except to the extent that such failure is caused by, or contributed to, by any act or omission of the Contractor.

68.3 Subclause 68.4 does not apply unless the Contractor and the Customer agree otherwise and it is specified in the Official Order to apply.

68.4 The liability of a Party under this Contract, in respect of each occurrence giving rise to an action described in subclause 68.1 shall, except in relation to liability:

(a) for personal injury (including sickness and death);

(b) for loss of, or damage to, tangible property; or

(c) under an indemnity provided by a Party under clause 66 or 67 of this Contract;

be limited to an amount of (X) million dollars or (Y) times the amount payable by the Customer under the Contract, whichever is the greater amount (as specified in the Official Order).

68.5 In subclause 68.4 “occurrence” means either a single occurrence, or a series of occurrences if these are linked or occur in connection with one another from one original cause, as the case may be.

69. Liquidated Damages

69.1 Where, through the fault of the Contractor or its Product, the Contractor fails to meet an obligation specified in the Official Order by the date prescribed in the Project, Implementation and Payment Plan or in the Official Order ("liquidated damages date") then:

(a) if an amount has been specified in the Official Order as the amount (the "liquidated damages amount") that is to be payable by the Contractor as and by way of liquidated damages to the Customer for the loss suffered by the Customer as a result of the delay (which amount the Parties acknowledge to be a genuine pre-estimate of the loss so suffered) and the Customer notifies the Contractor that it intends to rely on the remedy set out in this paragraph - the Contractor shall pay that liquidated damages amount within two (2) Normal Working Days of the liability arising in respect of each such day of delay, but not for more than 180 days, or

(b) if no amount has been specified in the Official Order as the liquidated damages amount or no notice has been sent by the Customer under paragraph (a) - the liability of the Contractor shall, in respect of the delay that occurs be determined in accordance with clause 68.

69.2 Liquidated damages shall be payable until either the Product successfully completes the obligation referred to in subclause 69.1 or the Customer terminates the Contract and acquires and accepts a substitute product or service (whether from the Contractor or elsewhere) whichever first occurs but always to a maximum of 180 days.

69.3 Where the Customer has granted an extension of time pursuant to clause 73 and has extended the liquidated damages date, no liquidated damages shall be payable for the period of that extension.

69.4 Where liquidated damages have been paid by the Contractor in accordance with subclause 69.1 or deducted by the Customer in accordance with clause 70, and an extension of liquidated damages date is subsequently granted, the Customer shall repay to the Contractor any liquidated damages paid or deducted in respect of the period up to an including the extended liquidated damages date.

69.5 Exercise of rights pursuant of this clause shall be without prejudice to any other right of action or remedy which has accrued or may accrue.

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70. Money Recoverable by the Customer

70.1 Any money due to the Customer under the Contract (including liquidated damages) and any damages, costs and expenses recoverable by the Customer from the Contractor in consequence of the Contractor's breach of the Contract may be deducted from any money then due to the Contractor under the Contract and if that money is insufficient for that purpose, from the Security and if that is insufficient, the balance remaining unpaid shall be a debt due by the Contractor to the Customer and may be:

(a) set off against any other money due to the Contractor by the Customer under any other contract between the Customer and the Contractor; or

(b) recovered from the Contractor by the Customer in any court of competent jurisdiction.

70.2 The Contract Authority may act for and on behalf of the Customer for the purpose of assessing and certifying any damages, losses, costs and expenses sustained or incurred by the Customer as a result of the breach of the Contract by the Contractor or as a result of termination of the Contract.

71. Conflict of Interest

71.1 The Contractor warrants that to the best of its knowledge at the date of signing the Contract no conflict of interest exists or is likely to arise in the performance of its obligations under the Contract by itself by its employees or any sub-contractors.

71.2 If during the course of the Contract a conflict or risk of conflict of interest arises, the Contractor undertakes to notify the Delegate immediately in writing of that conflict or risk of conflict.

71.3 The Contractor shall not, and shall use its best endeavours to ensure that any employee, agent or sub-contractor of the Contractor shall not, during the course of the Contract, engage in any activity or obtain any interest likely to conflict with or restrict the Contractor in performing its obligations under the Contract fairly and independently and shall immediately disclose to the Customer such activity or interest.

72. Negation of Employment and Agency

72.1 Subject to clause 131, the Contractor shall not represent itself, and shall ensure that its employees do not represent themselves, as being employees or agents of the Customer.

72.2 Subject to clause 131, the Contractor shall not by virtue of the Contract be, or for any purpose be deemed to be, an employee or agent of the Customer and no partnership shall be deemed to arise between the Parties as a consequence of the Contract.

73. Extension of Time

73.1 Where in the Contractor's reasonable opinion there is likely to be a significant delay in the Contractor discharging an obligation under the Contract because of a cause beyond the reasonable control of the Contractor (except a cause arising out of any act or omission on the part of the Contractor's employees, agents or sub-contractors or their employees or agents) which the Contractor considers justifies an extension of the time specified in the Contract to perform the obligation, the Contractor shall:

(a) notify the Customer in writing as soon as possible after the Contractor has formed that opinion of the facts which the Contractor considers will give rise to such a delay, develop strategies to manage the consequences of the delay and submit to the Customer a copy of the proposed variations to the Contract; and

(b) immediately after the circumstances causing the delay have ceased, notify the Customer in writing of the period of delay so caused, give details of the likely effect on the Contract and request an extension of time which the Contractor considers reasonable in all the circumstances.

73.2 The Customer shall give consideration to the Contractor's request and shall, as soon as possible after receiving a notice under paragraph 73.1(b), notify the Contractor of its decision. Where the delay has arisen from a cause beyond the reasonable control of the Contractor, (except a cause arising out of any act or omission on the past of the Contractors' employees, agents or sub-contractors or their employers or agents) the Customer shall not refuse a request for extension of time without reasonable grounds for doing so.

73.3 Notwithstanding that the Contractor has not given notice under subclause 73.1, where the Customer considers that a delay has arisen, in whole or in part, because of an act or omission on the part of the Customer or its employees or agents, in addition to any other rights which have or might accrue to the Contractor, the Customer may, by notice in writing to the Contractor, extend the time for performance of the relevant obligation of the Contractor by nominating in the notice a date for such performance and the date so specified shall, for the purposes of the Contract, be the date for performance of that obligation.

74. Secrecy and Security

The Contractor shall comply and shall ensure that any sub-contractor complies, so far as compliance is required, with the secrecy and security requirements of the Customer as set out in the Official Order, or notified by the Customer to the Contractor from time to time.

75. Variation of the Contract

75.1 Subject to Clause 84, the provisions of the Contract, other than the Official Order and the Contract Specifications, shall not be varied either in law or in equity except by agreement in writing signed by the Parties and the Contract Authority.

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75.2 Subject to subclause 75.7, the Official Order shall not be varied except by agreement in writing signed by the Parties.

75.3 If either Party wishes to vary the Contract Specifications, the proposing Party shall submit a copy of the proposed variations to the other Party. The receiving Party shall advise the proposing Party within four (4) Normal Working Days, or such other period as is agreed by the Delegate, of receipt of the variations either:

(a) that the receiving Party accepts the variations; or

(b) that the receiving Party rejects the variations.

75.4 If the receiving Party accepts the variations, the Contract Specifications shall be deemed to incorporate the accepted variations from the date upon which the receiving Party notifies the proposing Party that it accepts the variations.

75.5 If the receiving Party rejects the proposed variations, the Contractor shall perform the Contract in accordance with the unvaried Contract Specifications.

75.6 The price, licence fee or charge payable in respect of a variation to the Contract Specifications shall be agreed by the Customer and the Contractor or in the event of failure to agree within seven (7) days of acceptance of the variations under subclause 75.3 then:

(a) shall be based on the Price, Licence Fee and Charge specified in the Contract or if no such rate is specified, shall be based on the rates usually charged by the Contractor in its ordinary course of business; and

(b) if no such rate is capable of applying, shall be a reasonable price having regard to the reasonable cost to the Contractor of effecting the variation.

75.7 Where prior to delivery of a Product, Schedule 2 is amended to include modified or upgraded versions of that Product or new items comparable with that Product, the Customer may by notice in writing to the Contractor, substitute a Product with a modified or upgraded version or new item comparable with the Product as the case may be. The Customer shall pay for the substituted Product in accordance with clause 4 but shall be credited for any amount already paid to the Contractor in respect of the Product originally ordered.

75.8 The Contractor shall be entitled to an extension of time for performance of its obligation under Contract to the extent reasonably required by the substitution referred to in subclause 75.7 and the Customer shall compensate the Contractor for all costs unavoidably incurred by the Contractor in respect of the substitution.

76. Project, Implementation and Payment Plan

76.1 Where applicable, the Parties shall perform their obligations under the Contract in accordance with the Project, Implementation and Payment Plan.

76.2 Where the Project, Implementation and Payment Plan allows for any activity to be carried out within a specified time period the Contractor shall give to the Delegate at least seven (7) days written notification of the date upon which it proposes to commence that activity.

76.3 Where a Party identifies a risk which may have a significant effect on the implementation of the Project, Implementation and Payment Plan that Party shall immediately report the identified risk to the other Party and the Party responsible under the Contract for managing the identified risk shall inform the other Party of how it will manage that risk and shall forthwith undertake management of that risk.

77. Staged Implementation and Right to Terminate

77.1 Subclauses 77.2 and 77.3 do not apply unless it is specified in the Official Order that they do apply.

77.2 The Contractor shall not commence any work in a Stage until it receives prior written notification from the Customer to proceed with the work in that Stage. The formation of the Contract shall be deemed to be sufficient notification for the purposes of this subclause to proceed with work in Stage One.

77.3 Nothing in the Contract shall be construed as obligating the Customer to give the notification referred to in subclause 77.2 in respect of Stage Two or any other subsequent Stage. The Customer shall not be liable to the Contractor in any manner whatsoever for not giving such notification and the Contractor acknowledges that work under the Contract shall proceed from Stage to Stage in accordance with the Project, Implementation and Payment Plan only upon receipt of such notification which may be given or withheld in the absolute discretion of the Customer.

78. Termination for Breach by Contractor

78.1 For the purposes of this clause, the Contractor will be in default under the Contract, where the Contractor:

(a) fails to commence work under the Contract, or to fulfil the Official Order, or proceeds at a rate of progress so as to endanger the due and proper completion of the Contract; or

(b) fails to perform or observe any obligation or undertaking to be performed or observed on its part under the Contract.

78.2 If the Contractor is in default under the Contract and that default is capable of being remedied by subsequent performance, the Customer may, without prejudice to any right of action or remedy which has accrued or may accrue in favour of either Party, by notice in writing to the Contractor, specify the relevant default and, require the Contractor within a reasonable period specified in the notice to remedy the default promptly.

78.3 The Customer may, by notice in writing to the Contractor, immediately terminate the Contract in whole or in part, without prejudice to any right of action or remedy which has accrued or which may accrue in favour of either Party, where:

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(a) the Contractor is in breach of a material or essential term of the Contract, whether or not the Customer has given notice under subclause 78.2 in relation to that breach;

(b) the Contractor has failed to comply with a notice under subclause 78.2:

(c) the Contractor is in default under the Contract and that default is not capable of being remedied whether or not the Customer has given notice under subclause 78.2 in relation to that breach;

(d) the Customer rejects a Product pursuant to clause 55, or the System pursuant to clause 135;

(e) the Contractor fails to observe any reasonable security requirements provided for pursuant to clause 74;

(f) the Contractor fails to lodge the Security or a performance undertaking within the time or in the form required under the Contract;

(g) the Contractor assigns its rights otherwise than in accordance with the Contract; or

(h) the Contractor becomes subject to any form of insolvency administration.

79. Consequences of Termination Pursuant to Clause 78

79.1 In the event of termination under subclause 78.3, but without prejudice to any right of action or remedy which has accrued or which may accrue in favour of either Party, the Customer:

(a) may procure from any other source a reasonably similar alternative Product or Service suitable to the Customer and the Contractor shall be liable to the Customer for any reasonable extra expense incurred together with any loss sustained by the Customer;

(b) may, by notice in writing to the Contractor, require the Contractor at its expense to remove the specified Product not accepted by the Customer and to dismantle or remove specified work from the Customer's premises by a date specified in the notice;

(c) shall be liable under the Contract to pay only for the Product delivered and accepted by the Customer or for the Service performed to the satisfaction of the Delegate, in accordance with the Contract; and

(d) may recover from the Contractor the amount of any loss or damage suffered by the Customer as a result of the termination.

79.2 If the Customer terminates only part of the Contract under subclause 78.3, the Contractor shall continue to perform the remainder of the Contract and, subject to any alterations occurring as a result of such termination, the Customer and the Contractor shall be subject to the same rights and obligations as existed prior to such partial termination.

80. Termination for Breach by Customer

80.1 Where the Customer is in breach of an obligation under the Contract so that there is a substantial failure by the Customer to perform the Contract, the Contractor may, by notice in writing to the Customer, specify that breach and where that breach is capable of being remedied require the Customer within 30 days of receiving such notice to remedy that breach or commence appropriate action to remedy that breach.

80.2 Where the Customer has not:

(a) remedied the breach referred to in subclause 80.1 within 30 days of receiving a notice (including because the breach was incapable of being remedied); or

(b) commenced appropriate action to remedy that breach within 30 days of receiving a notice and remedied the breach within a reasonable time after that period has elapsed;

the Contractor may, by notice in writing to the Customer, terminate the Contract without prejudice to any right of action or remedy which has accrued or which may accrue in favour of either Party.

81. Termination or Suspension with Compensation

81.1 In addition to any other rights it has under the Contract, the Customer may terminate or suspend the Contract in whole or in part, by notifying the Contractor in writing that the Contract or a part of the Contract is terminated or suspended as the case may be from the date specified in the notice (which date shall not be a date earlier than the date on which the notice is received by the Contractor), and in that event, the Customer may give to the Contractor such reasonable directions as it thinks fit in relation to subsequent performance of the Contract.

81.2 The Contractor shall immediately comply with any directions given under subclause 81.1 and shall do everything possible to mitigate its losses arising in consequence of termination or suspension of the Contract under this clause.

81.3 The Customer shall indemnify the Contractor against any liabilities or expenses which are reasonably and properly incurred by the Contractor in connection with the Contract to the extent that those liabilities or expenses were incurred in consequence of termination or suspension of the Contract in accordance with this clause. This subclause does not apply to termination or suspension occurring because of a default by the Contractor as specified in clause 78.

81.4 The Contractor shall, in each sub-contract or order to the value of $20,000 or more placed with any sub-contractor for the purpose of the Contract, reserve a right of termination or suspension to take account of the Customer's right of termination or suspension under this clause.

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82. Dispute Resolution

82.1 Subject to subclause 82.4, before resorting to external dispute resolution mechanisms, the Parties shall attempt to settle by negotiation any dispute in relation to the Contract including by referring the matter to the Contract Authority or other personnel who may have authority to intervene and direct some form of resolution.

82.2 If a dispute is not settled by the Parties within 10 days (or other such period as the Parties agree) of one Party first sending to the other Party written notice that they are in dispute, the dispute shall be submitted to an external dispute resolution mechanism.

82.3 Notwithstanding the existence of a dispute, each Party shall continue to perform its obligations under the Contract.

82.4 A Party may commence court proceedings relating to any dispute arising from the Contract at any time where that party seeks urgent interlocutory relief.

83. Notices (Customer and Contractor)

83.1 A notice or other communication which may be given to or served on the Contractor under the Contract shall be deemed to have been duly given or served if it is in writing, signed by the Customer and is either delivered by hand, posted or a copy transmitted electronically to the Contractor or its agent at the registered office of the Contractor or posted to the Contractor's address set out in the Official Order or such other address as is notified in writing to the Customer from time to time.

83.2 A notice or other communication which may be given to or served on the Customer under the Contract shall be deemed to have been duly given or served if it is in writing, signed by the Contractor or the representative and is either delivered by hand, posted or a copy transmitted electronically to the Customer at the address set out in the Official Order or such other address as is notified in writing to the Contractor from time to time.

83.3 A notice sent by post shall be deemed to have been given at the time when, in the ordinary course of the post, it would have been delivered at the address to which it is sent.


83.5 If delivery or receipt of a notice or communication occurs on a day on which business is not generally carried on in the place to which the notice or communication is sent or is later than four (4) pm (local time) it will be taken to have been duly given or made at the commencement of business on the next day on which business is generally carried on in that place.

84. Additional Conditions

The Customer and the Contractor may agree in writing to such other terms and conditions (in the Contract called the "Additional Conditions") as they think fit, which terms and conditions are to be set out in the Official Order, but the Parties agree that the Additional Conditions, except in respect of amendments to Parts Seven, Eight, Nine, Ten, Eleven and Thirteen, shall not, without the consent of the Contract Authority, either expressly or by implication, derogate from the terms and conditions set out at clauses 1 to 156 and to the extent that those Additional Conditions do derogate from the terms and conditions set out at clauses 1 to 156, the Parties agree that those Additional Conditions shall be void and have no effect.

84A. Intentionally not used

84B Goods and Services Tax

(1) Unless expressly stated otherwise, all fees or other sums payable or any other consideration provided, or to be provided, under or in connection with this Agreement or a Contract, are GST exclusive.

(2) Unless expressly stated otherwise, a party (in this Clause 84B called the “Supplier”) making a taxable supply under or in connection with this Agreement or a Contract, may recover from the party (in this Clause 84B called the “Recipient”) to whom the taxable supply is made, the amount of GST (the “Additional Amount”) payable under the GST Act on the taxable supply.

(3) The Additional Amount must be paid at the time when payment of the monetary consideration for the taxable supply is due.

(4) Terms and expressions used in this Clause 84B, which are defined in the GST Act, have the same meaning given to those terms and expressions in that Act. “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 including all amendments made to the Act and any other regulations and other instruments made under the Act.

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84C Confidentiality

84C.1 Parties may disclose contract provisions

Despite any confidentiality or Intellectual Property right subsisting in the Contract, or any annexure or attachment to it, either Party may publish, without reference to the other, all or any part of the Contract, except those parts of the Contract identified in any schedule to the Contract as confidential provisions (“Confidential Provisions”).

84C.2 Limited confidentiality for Confidential Provisions

(a) The Head of Agency has determined that the Confidential Provisions must remain confidential to the Parties under this clause 84C.2.

(b) The Parties must maintain confidentiality of the Confidential Provisions for the period determined and approved by the Head of Agency, so far as the law allows, except to the extent that:

(i) the Confidential Provisions are available to the public generally, other than by breach of the Contract;

(ii) a law requires a Party to file, record or register something that includes the Confidential Provisions;

(iii) disclosure is necessary or advisable to get a consent, authorisation, approval or licence from a governmental or public body or authority;

(iv) it is necessary or advisable to disclose the Confidential Provisions to a taxation or fiscal authority;

(v) it is necessary to disclose the Confidential Provisions in answer to a question asked of a Minister in the Parliament or otherwise to comply with a Minister’s obligations to Parliament;

(vi) the Confidential Provisions are disclosed confidentially to a Party’s professional advisers:

(A) to get professional advice about the Contract; or

(B) to enforce the Contract; or

(vii) the Parties agree otherwise in writing.

84C.3 Contractor must not disclose other material

Subject to clause 84C.1, the Contractor must not publicly disclose, or use for a purpose other than the Contract, any information or material acquired or produced in connection with, or by performing the Contract, including CSI or Contract Material (“Confidential Material”), without the Delegate’s prior written consent, except to the extent that:

(a) the Confidential Material is available to the public generally, other than by breach of the Contract;

(b) a law requires the Contractor to disclose, file, record or register something that includes Confidential Material;

(c) disclosure is necessary or advisable to get a consent, authorisation, approval or licence from a governmental or public body or authority;

(d) it is necessary or advisable to disclose the Confidential Material to a taxation or fiscal authority;

(e) the Confidential Material is disclosed confidentially to professional advisers:

(i) to get professional advice about the Contract; or

(ii) to enforce the Contract; or

(f) the Parties agree otherwise in writing.

84C.4 Employees to comply

The Parties must ensure that their respective employees who have access to the Confidential Provisions, Confidential Material, or both, are aware of, and comply with, all confidentiality obligations affecting it.

84C.5 Privacy obligations preserved

Nothing in this clause derogates from a Party’s obligations under the Personal Information Protection Act 2004 (Tas) or the Privacy Act 1988 (Cwlth).

84C.6 Confidentiality Deed

The Customer may at any time require the Contractor to arrange for its employees, agents or sub-contractors engaged in the performance of the Contract to execute a Deed of Confidentiality substantially in the form appearing in Schedule 10 of the Agreement relating to the non-disclosure of Confidential Provisions or Confidential Material and the Contractor shall arrange for all such Deeds to be executed promptly.

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84D Zero Tolerance Towards Violence Against Women(a) Violence against women is defined by the United Nations as “any act of gender based violence that results in or is likely to result

in physical, sexual or psychological harm or suffering to women”.

(b) Both the Contract Authority and the Customer uphold a zero tolerance policy towards violence against any person in the workplace. The Contractor acknowledges and undertakes to uphold a zero tolerance policy towards violence against any person in the workplace in its interaction with employees, agents and subcontractors of the Customer and in delivery of either, or both, Products or Services.

(c) The Contractor must and will ensure that its employees, agents and subcontractors will at all times in delivery of either, or both, Products or Services act in a manner that is non-threatening, courteous and respectful.

(d) If the Customer reasonably believes that any of the Contractor’s employees, agents or subcontractors are failing to comply with the behavioural standards specified in this clause then the Customer may in its absolute discretion:

(i) prohibit access by the relevant employees, agents or subcontractors to the Customer’s premises; and

(ii) direct the Contractor to withdraw the relevant employees, agents or subcontractors from providing either, or both, Products or Services.

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Government Information Technology Conditions Version 2PART FOUR - Hardware Acquisition and Installation

PART FOUR

Hardware Acquisitionand

Installation Module

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Government Information Technology Conditions Version 2PART FOUR - Hardware Acquisition and Installation

PART FOUR - HARDWARE ACQUISITION AND INSTALLATION MODULE

85. Provision of Products

The Contractor shall, in accordance with the Contract, supply the Products to the Customer.

86. Product Warranty

86.1 The Contractor warrants that:

(a) at the time property in a Product passes to the Customer, the Product is free from any charge or encumbrance; and

(b) during the Warranty Period each Product shall be free from defects or omission in design, performance, workmanship and materials and shall comply with the Contract Specifications.

86.2 The Product shall, except as otherwise provided by the Customer in the Official Order, be new and shall not have been previously installed other than for the purpose of testing.

86.3 The Contractor shall, at its own cost and expense undertake such repair, replacement or other work in respect of the Product as is necessary, in a timely and workmanlike manner, to ensure that the Product conforms to the standard set out in paragraph 86.1(b) and all remedial work, or replacement of the whole or any part carried out or supplied by the Contractor is warranted by the Contractor to the same extent as the Product, from completion of that remedial work or replacement.

86.4 Where the Contractor does not comply with subclause 86.3 within a reasonable time after receipt of notice to do so, the Customer shall, at its discretion, have the right to perform or have performed that work or replacement as the case may be at the cost of the Contractor, which cost shall be taken as money due to the Customer under the Contract for the purposes of clause 70.

86.5 The Contractor shall not be liable under this clause to the extent that the defect is caused by the Customer or a third party, including the failure of the Customer or the third party to maintain the environment or operate the Product in accordance with the Contract Specifications and the Documentation.

87. Continued Product Availability

87.1 The Contractor warrants that, in respect of a particular hardware Product, the Contractor shall for a period of three (3) years commencing on the AAD in respect of that Product:

(a) continue to supply that Product (including replacements, upgrades or attachments); or

(b) supply appropriate substitutes for that Product if for any reason the Product is no longer available.

87.2 The Contractor warrants that, in respect of a particular hardware Product, the Contractor shall for a period of five (5) years commencing on the AAD in respect of that Product:

(a) continue to provide support and spare parts for that Product, or any replacement, upgrade or substitute for the Product;

(b) continue to supply all items required by the Customer that the Contractor makes generally commercially available to enable the Customer to maintain that Product; and

(c) provide training for and such other assistance as is reasonably required by the Customer to enable the Customer to continue to maintain the Product provided that the Contractor makes that training or assistance generally commercially available.

87.3 The Contractor's prices and charges applicable to subclause 87.1 and 87.2 shall be as set out in Schedule 2 at that time or if not set out in Schedule 2, shall be prices and charges that are no more than those charged to users of similar products in Australia.

87.4 Should the Contractor be unable to continue supplying spare parts at any time after the expiration of the Life of the System, the Contractor shall give no less than 12 months advance notice to allow the Customer to purchase such spare parts as the Customer requires for the purpose of continuing maintenance of the Product.

87.5 This clause shall survive expiration of the Contract.

88. Title and Risk

A Product becomes the property of the Customer at midnight on the AAD in respect of that Product and risk of loss or damage in respect of that Product passes to the Customer at that time.

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Government Information Technology Conditions Version 2PART FIVE - Hardware Maintenance

PART FIVE

Hardware MaintenanceModule

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PART FIVE - HARDWARE MAINTENANCE MODULE

89. Provision of Hardware Maintenance Service

89.1 The Contractor shall, in accordance with the Contract, provide Hardware Maintenance Service at the Site in respect of the Hardware for the period specified in the Official Order, which period shall commence on the date set out in the Official Order.

89.2 Hardware Maintenance Service provided by the Contractor shall consist of that service detailed in Schedule 2 and specified in the Official Order, including if so specified, CMS, Preventive Maintenance, Remedial Maintenance and any other service which is necessary to restore the Hardware to good working order and operating condition.

89.3 The Customer may, at any time after the Official Order has been despatched, upon giving the Contractor written notice of not less than 90 days, or such other period as the Parties may agree, transfer an item of Hardware from one category of Hardware Maintenance Service to another category of Hardware Maintenance Service being provided to the Customer by the Contractor pursuant to an Official Order and the Customer shall pay the Charge for that other category of Hardware Maintenance Service in accordance with the Contract.

89.4 Where the Customer has given notice under subclause 89.3 of intention to transfer an item of Hardware from one category of Hardware Maintenance Service to another, the Contractor shall allow the Customer to set off against the amount that has been paid by the Customer in respect of the new category of Hardware Maintenance Service, an amount that, on a pro-rata basis, is attributable to the balance payable for the period of the original category of Hardware Maintenance Service.

90. Standard of Maintenance Service

90.1 The Contractor shall carry out the Hardware Maintenance Service to a standard that ensures continuity of performance of the Hardware in accordance with the Contract Specifications.

90.2 The Contractor shall carry out Comprehensive Maintenance Service using appropriately qualified technicians to a standard that ensures that:

(a) the Hardware achieves the continuity of performance specified in subclause 90.1;

(b) the Hardware operates (without degradation of productive performance) to at least 98% Hardware Availability or such higher percentage as specified in the Official Order and determined in accordance with clause 96; and

(c) System Availability of at least 99% or such higher percentage as specified in the Official Order is achieved.

91. Preventive Maintenance

91.1 The Contractor shall carry out Preventive Maintenance in accordance with the Preventive Maintenance Schedule agreed between the Parties and set out in the Official Order.

91.2 Preventive Maintenance shall be consistent with the Customer's operating requirements and the needs of the Hardware and shall be conducted in a way that causes minimum disruption to the Customer's operations and, wherever possible, shall be undertaken by taking items of Hardware off-line and allowing the Customer's operations to continue.

91.3 Preventive Maintenance shall include all services necessary to ensure the preservation of the Hardware in good operating condition and to detect problems and minimise their occurrence during the Maintenance Service Period. It shall include running systems checks, replacement of unserviceable parts (but excluding consumable items), cleaning and, where necessary, lubrication and adjustment of mechanical and electro-mechanical devices.

91.4 The Contractor shall, if requested by the Delegate, make available for inspection details of the specific Preventive Maintenance tasks performed during a period.

91.5 The Delegate may elect to have Preventive Maintenance performed outside the Basic Maintenance Period, subject to payment of the charges (if any) as are set out in Schedule 2.

92. Remedial Maintenance

92.1 The Contractor shall carry out Remedial Maintenance:

(a) in respect of Comprehensive Maintenance Service, on being notified by the Delegate of the occurrence of a fault condition in the Hardware; or

(b) in respect of other services comprising Remedial Maintenance, in the manner nominated in and on each occasion of an Official Order.

92.2 In respect of Comprehensive Maintenance Service, if the required Remedial Maintenance is not complete at the conclusion of the Basic Maintenance Period, the Delegate may determine whether the Remedial Maintenance will extend beyond that Basic Maintenance Period or be deferred until the next Basic Maintenance Period but if the Delegate authorises Remedial Maintenance to be continued for more than one hour immediately following the Basic Maintenance Period, that maintenance shall be separately chargeable at the rate set out in the Official Order.

92.3 The Contractor must maintain effective procedures for ensuring that when a fault occurs, each item of Hardware being maintained is restored to good order and operating condition within the shortest possible time.

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92.4 Response time for any attendance shall not exceed the periods specified in the Official Order. The Contractor shall commence to remedy a fault, whether by remote or onsite diagnosis, within the permitted response time.

92.5 If the response time referred to in subclause 92.4 has not been achieved by the Contractor, the fault escalation procedure (if any) set out in the Official Order shall be applied by the Contractor in order to allow for all resources allocated by the Contractor to be applied to achieve fault resolution in the shortest possible time frame.

93. Warranty - Hardware Maintenance Service

The Contractor warrants that:

(a) for the period of 90 days from the date that any service is performed; or

(b) for a period of 365 days from the date that any part of an item of Hardware is installed;

the item of Hardware upon which the Hardware Maintenance Service is performed shall be free from defects or omission in performance, workmanship and materials and shall remain in good working order and operating condition, in so far as that service or part is concerned.

94. Charges - Hardware Maintenance Service

94.1 When the Hardware Maintenance Charge is calculated on the basis of the time taken for work performed on an item of Hardware, that charge shall accrue only while work is actually being performed on that item of Hardware.

94.2 Where a minimum charge applies in respect of Hardware Maintenance Service undertaken to correct a fault, no further minimum charge shall apply to subsequent maintenance found necessary in respect of that particular fault.

94.3 The Hardware Maintenance Charge set out in the Official Order shall be taken to include all labour costs.

94.4 Where materials are costed separately in the Hardware Maintenance Service, the Contractor shall obtain approval from the Delegate before proceeding with any Hardware Maintenance Service where the cost of the materials is likely to exceed $1000 net cost.

95. Basic Maintenance Period

95.1 Clauses 95, 96 and 97 operate when Comprehensive Maintenance Service is provided.

95.2 The Delegate shall nominate for each item of Hardware, or for the MSC, as the case requires, the Basic Maintenance Period for which the Hardware Maintenance Service for that item of Hardware, or the MSC, as the case may be, is required, which period shall comprise:

(a) during Normal Working Days:(i) one period of eight (8) hours (or such other period as is agreed between the Parties and specified in the Official

Order) between 0700 hours and 1800 hours; and(ii) additional periods, in increments of two (2) hours, contiguous with the initial period of eight (8) hours specified in

subparagraph (a)(i) (or that other period); and

(b) on a Saturday, Sunday or Public Holiday, and where the Delegate considers that this is necessary - a period agreed between the Parties;

and this period shall be specified in the Official Order.

95.3 The Customer may vary the Basic Maintenance Period to a period comprising any of the periods specified in subclause 95.2 on the Delegate giving not less than 30 days notice to the Contractor, and where the Customer varies the Basic Maintenance Period, the charges for the Hardware Maintenance Service and other conditions affecting the nature and delivery of the Hardware Maintenance Service shall be varied in accordance with the terms of the Contract.

95.4 The Delegate may authorise temporary extensions to the Basic Maintenance Period by giving not less than 48 hours notice to the Contractor, and during that temporary extension, the Contractor shall provide the same standard of Hardware Maintenance Service as is applicable during the Basic Maintenance Period for the Charge as varied in accordance with the terms of Contract.

95.5 Where the Delegate gives less than 48 hours notice to the Contractor that a temporary extension to the Basic Maintenance Period is required, the Contractor shall use its best endeavours to provide the same standard of Hardware Maintenance Service as is applicable during the Basic Maintenance Period.

95.6 The Hardware Maintenance Charge in respect of Comprehensive Maintenance Service shall not be varied by reason of the hours during which the Hardware is actually used by the Customer.

96. Hardware and System Availability

96.1 The Hardware Maintenance Charge due at the completion of each Accounting Period shall be adjusted in accordance with clause 97 where the specified levels of Hardware Availability and System Availability are not achieved.

96.2 "Hardware Availability" of an item of Hardware in respect of each Accounting Period shall be calculated as a percentage using the following formula:

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Where: HA = Hardware Availability;

BMP= Basic Maintenance Period; and

HD = Hardware Downtime for the item of Hardware.

96.3 "System Availability" of the MSC in respect of each Accounting Period shall be calculated as a percentage using the following formula:

Where: SA = System Availability;

BMP= Basic Maintenance Period; and

SD = System Downtime for the Minimum System Configuration.

96.4 In this Contract, unless the contrary intention appears:

"Hardware Downtime" ("HD"), in relation to an item of Hardware:

(a) means the total elapsed time during the Basic Maintenance Period in respect of that item of Hardware during which the item of Hardware is not available for the Customer's productive use (as assessed in accordance with the Product Specifications and the Customer's Functional Specifications) for reasons attributable to failure of any Hardware, the withdrawal of any Hardware for maintenance, repair or testing, or because an item of Hardware is undergoing Preventive Maintenance in excess of the agreed Preventive Maintenance Schedule (any of which in this definition is called a "fault condition"); and

(b) shall commence on notification by the Customer to the Contractor of the fault condition requiring attention, shall exclude the response time period allowable under clause 92, shall include the time taken to automatically or manually reload the operating system but (unless otherwise specified in the Official Order) shall not include the time taken to restore the applications software that was running at the time the fault condition occurred to the condition it was in immediately before the occurrence of the fault condition, and shall end at the commencement of a period during which the item of Hardware is available for the Customer's productive use for 30 minutes continuous, error-free operation;

"System Downtime", in relation to the MSC:

(a) means the total elapsed time during the Basic Maintenance Period in respect of that MSC during which the MSC is not available for the Customer's productive use (as assessed in accordance with the Product Specifications and the Customer's Functional Specifications) for reasons attributable to failure of any Hardware or software, the withdrawal of any Hardware or software for maintenance, repair or testing, or because items of Hardware are undergoing Preventive Maintenance in excess of the agreed Preventive Maintenance Schedule (any of which in this definition is called a "fault condition"); and

(b) shall commence on notification by the Customer to the Contractor of the fault condition requiring attention, shall exclude the response time period allowable under clause 92, shall include the time taken to automatically or manually reload the operating system but (unless otherwise specified in the Official Order) shall not include the time taken to restore the applications software that was running at the time the fault condition occurred to the condition it was in immediately before the occurrence of the fault condition and shall end at the commencement of a period during which the MSC is available for the Customer's productive use for 30 minutes continuous, error-free operation.

96.5 For the purpose of this clause, the expressions "Hardware Downtime" and "System Downtime" shall not include any period during which the Contractor is unable to perform the Hardware Maintenance Service because the Delegate denied the Contractor access to the Hardware.

97. Failure to Achieve Hardware and System Availability Standard

97.1 Where during an Accounting Period the Hardware Availability of an item of Hardware fails to achieve 98%, no Hardware Maintenance Charge shall be payable for that item for that Accounting Period.

97.2 Where during an Accounting Period the System Availability achieved is less than 97.5%, no System Maintenance Charge shall be payable for that MSC for that Accounting Period.

97.3 Where during an Accounting Period the System Availability fails to achieve 99% but is equal to or greater than 97.5%, the System Maintenance Charge payable by the Customer shall be adjusted so that for each .5% drop below 99.0% in System Availability during that Accounting Period, the System Maintenance Charge payable during that Period shall be reduced by 25%.

97.4 Where during an Accounting Period the System Availability exceeds 99.5%, the excess percentage System Availability may be accumulated and used to offset performance below 99% but above 97.5% in future Accounting Periods but when an excess is sought to be applied to an Accounting Period, it must be taken from credits accumulated over the immediately preceding three (3) month period.

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97.5 The System Maintenance Charge calculated in accordance with subclauses 97.2, 97.3 and 97.4 (in this clause 97 called the "Adjusted System Maintenance Charge") shall apply to all items nominated in a Minimum System Configuration and shall be as set out in the following table:

SYSTEM AVAILABILITY % (SA) PAYMENTi. Where SA is greater than 99.5% Creditii. Where SA is equal to or greater than 99.0%

and less than or equal to 99.5% 100%iii. Where SA is equal to or greater than 98.5%

and less than 99.0% 75%iv. Where SA is equal to or greater than 98.0%

and less than 98.5% 50%v. Where SA is equal to greater than 97.5%

and less than 98.0% 25%vi. Where SA is less than 97.5% 0%

97.6 The calculation of System Availability and Adjusted System Maintenance Charge shall be carried out separately for each Minimum System Configuration maintained by the Contractor.

97.7 Where the failed item of Hardware constitutes part of a Minimum System Configuration and the failure constitutes System Downtime, the adjustments shall be made against the System Availability.

97.8 The Parties may agree to higher percentage figures for Hardware Availability and Systems Availability in which case those higher figures shall be specified in the Official Order and operate in substitution for the respective percentage figures appearing in this clause.

98. Spares, Test Equipment and Diagnostic Routines

98.1 The Contractor shall, if requested by the Delegate, maintain at or near the Site, at no additional cost to the Customer, all necessary engineering manuals and Documentation and all tools and test equipment and such stock of frequently required parts as may be necessary to achieve the required standard of the Hardware Maintenance Service.

98.2 The Customer shall provide at the Site, at no charge to the Contractor, reasonable working and storage space for spare parts, test equipment and associated materials.

98.3 Where the Contractor replaces parts of the Hardware:

(a) the replacement parts shall be new or warranted as new unless otherwise permitted by the Delegate;

(b) the replacement parts shall become the property of the Customer on installation (where the Contractor has replaced components owned by the Customer);

(c) the replaced component shall become the property of the Contractor but the Contractor shall comply with any directions given by the Delegate concerning the protection of the Customer's classified matter; and

(d) the Customer shall reimburse the Contractor any reasonable and substantiated costs incurred by the Contractor in complying with any directions given under paragraph 98.3 (c).

98.4 Unless the Hardware Maintenance Service is expressed to include interchange of parts, interchange of parts between the Hardware and any other equipment for any purpose whatsoever shall not be without the prior knowledge and consent of the Delegate, and the replacement of any component shall not modify or vary any of the Contractor's obligations under the Contract.

98.5 Subject to subclauses 98.6, 98.7 and 98.8, where it has or can obtain the rights to do so, the Contractor shall provide the Delegate with all Documentation to be used by the Contractor in providing any maintenance service under the Contract and also a copy of all Documentation and necessary facilities and equipment normally used to provide maintenance of the Hardware and the System.

98.6 The Contractor is only obliged to supply to the Customer the Documentation and programs referred to in subclause 98.5 if the Contractor makes those items available on more than a limited basis to any of its customers (whether or not to Customers within the meaning of the Contract).

98.7 Where the Contractor does not normally make a particular item referred to in subclause 98.6 available to customers (whether or not to Customers within the meaning of the Contract), the Contractor may supply that item to the Customer in special circumstances on terms and conditions to be agreed between the Parties.

98.8 The Contractor must maintain up-to-date lists of significant spares, test plant and engineering diagnostic routines required for the Hardware Maintenance Service and have sufficient replacement parts available to effect the Hardware Maintenance Service for the duration of the Maintenance Service Period.

98.9 The Contractor warrants that it has access to all necessary facilities and equipment to perform the Hardware Maintenance Service. Diagnostic programs designed to check the correct functioning of specified units shall be run according to the relevant manufacturer's specifications.

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99. Engineering Changes

99.1 As part of the Hardware Maintenance Service and subject to the agreement of the Delegate, the Contractor shall implement all engineering changes and upgrades designed to improve the safety, performance or reliability of the Hardware and the System.

99.2 All engineering changes authorised by the manufacturer or supplier and:

(a) classified by the manufacturer or supplier as mandatory (whether or not these result in improved performance), shall be provided to the Customer at no additional cost to the Customer; or

(b) classified by the manufacturer or supplier as non-mandatory, shall be paid for by the Customer, the amount payable to be agreed between the Parties, and to be no more than the amount payable by the Contractor's other customers for the engineering change;

and the implementation of any of those changes shall not modify or vary the Contractor's obligations under the Contract.

99.3 To allow the Delegate to evaluate all proposed engineering changes fully, the Contractor shall give the Customer reasonable prior notification in writing of the purpose of the change, details of the Hardware items affected, proposed timing of introduction and estimated time to complete testing requirements and estimated time to remove such changes in the event of failure, to allow the Hardware and the System to return to a satisfactory operating condition.

99.4 The Contractor shall not be liable under this clause for any costs incurred by the Customer which result directly from the Customer not implementing an engineering change or upgrade offered to the Customer by the Contractor.

100. Hazardous Conditions

100.1 The Contractor shall advise the Delegate when it detects conditions within the Hardware which constitute a hazard to the safety of the Hardware, the System or personnel. The Contractor shall provide full advice of the cause of the hazard and the means by which the Contractor proposes to rectify the condition and remove the hazard.

100.2 If the Customer does not agree to the installation of an engineering change designed to improve safety, or removes a safety feature already installed, the Contractor shall appraise the safety of the Hardware and the System and shall advise the Customer if a hazardous condition is detected.

100.3 Where the Customer operates the Hardware under hazardous conditions, the Contractor may discontinue providing Hardware Maintenance Service until the hazardous condition has been corrected. The repair of any damage caused by such operation shall not be included in the Hardware Maintenance Service, but shall be provided by the Contractor at an additional charge which charge shall not exceed the Contractor's normal charge for such work.

101. Modification or Attachment of Additional Equipment

101.1 The Customer may from time to time acquire from suppliers other than the Contractor and other than pursuant to clause 104, additional equipment for attachment to, or use in connection with, the Hardware maintained by the Contractor and in that event, the Contractor shall provide all reasonable assistance and co-operation to the Customer and the alternative supplier in effecting the system interfaces involved. The Contractor shall make available to the Customer such technical information as is reasonably required for this purpose so long as any third party to whom the Customer intends to disclose the Contractor's Confidential Information agrees to treat that information as Confidential Information.

101.2 The attachment or use of the additional equipment shall not vary the Contractor's obligations under the Contract provided the attachment or use is made and maintained with the Contractor's approval (which approval shall not be withheld unreasonably) of the necessary technical interfaces.

101.3 The Contractor shall not be responsible for any breaches of the Intellectual Property Rights of any person where those breaches (if any) occurred while the Contractor was acting in accordance with subclause 101.1, but the Contractor shall disclose to the Customer as soon as any relevant information becomes available or is known to the Contractor whether there is any risk of the Intellectual Property Rights of a person being infringed as a result of activities undertaken pursuant to this clause.

102. Movement of Hardware

102.1 Subject to subclause 102.6, the Customer shall give the Contractor at least 30 days written notice, or such other period of notice as is specified in the Official Order, of its intention to relocate any Hardware being maintained under the Contract.

102.2 The Delegate may require the Contractor to undertake the relocation of the Hardware and, in such event, the Contractor shall, as necessary, be responsible for dismantling, packing, unpacking, reinstalling and recommissioning the Hardware.

102.3 The Contractor shall be solely responsible for the safe-handling and safe-keeping of the Hardware during such relocation.

102.4 The Contractor's charges for relocation (including insurance) shall be no less favourable than charges payable by any other user in similar circumstances to the Customer.

102.5 Hardware Maintenance Charges shall cease on the day the Hardware dismantling commences and shall resume on the day following the recommissioning of the Hardware at the new location.

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102.6 Where the Hardware is supplied on the basis that it is portable or may be moved without operational dislocation, the Delegate may move the Hardware without prior reference to the Contractor and without any reduction of the Contractor's obligations under the Contract but the Contractor shall not be responsible for any damage which occurs due to such movement. The Delegate shall inform the Contractor of the new location of the Hardware concerned.

102.7 If the Contractor sends any of the Hardware away from the Site for overhaul or repair then, unless otherwise agreed, the Contractor shall bear all the costs, including those of packing, carriage and insurance, that are incurred in the despatch, overhaul, repair, return and reinstallation of the Hardware.

103. Maintenance Records

103.1 The Contractor shall maintain records of all faults, all remedial action taken and all replaced parts (unless the Customer notifies the Contractor that it does not require such records to be kept) and make copies of such records available to the Customer on request by the Delegate.

103.2 For periods when the Hardware is being operated by the Customer, the Customer shall, where appropriate, maintain a record of system and equipment usage, fault occurrence and duration and make the record available to the Contractor. The Contractor shall daily, or as otherwise agreed in writing with the Delegate, notify the Delegate of any errors it considers are in the record. In the absence of such notice by the Contractor, the record shall be accepted as correct. This record shall be used as the basis for determining System Availability and Hardware Availability.

104. Variation of Hardware

104.1 The Customer may for any reason:

(a) add or substitute an item of hardware of the same or similar types to that covered by the Contract to the Hardware Maintenance Service; and

(b) withdraw an item of Hardware from the Hardware Maintenance Service;

on the Delegate giving to the Contractor not less than 30 days notice in writing, or such longer notice as is set out in the Official Order.

104.2 Where any System or item of Hardware has been withdrawn, added to or transferred pursuant to this clause, the Customer and the Contractor shall negotiate in good faith on any necessary and consequential changes to the Minimum System Configuration and the System where applicable.

104.3 The Hardware Maintenance Charge payable by the Customer shall be adjusted to reflect the variations in the number of Hardware items added, withdrawn or substituted but any item of Hardware added or substituted shall, if it is found to be faulty upon such addition or substitution, be repaired at the cost of the Customer.

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Government Information Technology Conditions Version 2PART SIX - Software Licensing Module

PART SIX

Software LicensingModule

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PART SIX - SOFTWARE LICENSING MODULE

105. Grant of Licence

105.1 The Contractor warrants that it has the right and authority to grant this Licence in Australia to the Customer.

105.2 The Contractor hereby grants to the Customer a non-exclusive, non-transferable licence of the class specified in Schedule 2 and described in the Official Order to use and copy the Licensed Software subject to any restrictions specified in the class of licence or as set out in this Licence Agreement.

105.3 For the class of licence described in the Official Order, this Licence entitles the Customer to:

(a) carry out Acceptance Tests (if any) in respect of the Licensed Software during the Testing Period;

(b) subject to the restrictions specified in Schedule 2 for the class of licence described in the Official Order, copy or translate the Licenced Software;(i) into machine readable form; and(ii) into printed form to the extent necessary to operate the Licensed Software for the Customer's use in accordance

with this Licence Agreement;

(c) where the class of licence has a processor specified for use of the Licensed Software, use the Licensed Software on:(i) a backup system when the processor specified for use of the Licensed Software or an associated unit is

temporarily inoperable until operable status is restored and processing on the backup system is completed; or(ii) another system for assembly or compilation of the Licensed Software if the processor specified for use of the

Licensed Software or an associated unit does not provide the configuration required for assembly; or(iii) any replacement processor that has substantially the same capacity and binary compatible operating system

characteristics as the processor specified for use of the Licensed Software, after the Customer provides notice in writing to the Contractor of that replacement processor (if the Contractor so requires this) provided that the Licensed Software shall not continue to be used on the previous processor once it is in use on the replacement processor;

(d) use the Contractor's Documentation in support of the Customer's use of the Licensed Software; and

(e) make such number of copies of the Licensed Software as is specified in the Official Order.

105.4 The Customer shall not, in contravention of the Copyright Act 1968 (Cth.), reverse assemble or reverse compile the Licensed Software in whole or in part.

106. Period of Licence

This Licence Agreement shall commence on the date specified in the Official Order and subject to earlier termination in accordance with this Licence Agreement, the Licence shall remain in force for the period specified in the Official Order.

107. Supply of Licensed Software

The Contractor shall supply such number of copies of the Licensed Software as is specified in the Official Order. Each copy shall be in the format and on the medium specified in the Official Order and each copy shall be taken to be the subject of a separate Licence Agreement unless otherwise specified in the Official Order.

108. Product Warranty (Licensed Software)

108.1 The Contractor warrants that during the Warranty Period the Licensed Software (including all Updates and New Releases) will comply with the Contract Specifications and will operate on and will be compatible with the Designated Operating Environment.

108.2 If at any time during the Warranty Period the Customer believes that there is a Defect in the Licensed Software such that the Licensed Software does not comply with or cannot be used in accordance with the Contract Specifications, the Customer shall notify the Contractor of that perceived Defect.

108.3 Without prejudice to any other right or remedy of the Customer (whether arising by statute or otherwise), the Contractor shall at its own cost and expense within a time agreed between the Parties, or if no time is agreed, within a time that is reasonable in all the circumstances, remedy the Defect referred to in subclause 108.2 on notification by the Customer of that Defect.

108.4 The Contractor shall, before the time referred to in subclause 108.3 has expired, take such measures as are reasonably appropriate in all the circumstances (including a work-around) to enable the Customer to continue to productively use the Licensed Software.

108.5 All remedial work or replacement of the whole or any part of the Licensed Software carried out or supplied pursuant to subclause 108.3 is hereby warranted to the same extent as the Licensed Software from the date the work is completed or the part is replaced, as the case may be.

108.6 If the Contractor fails to remedy a Defect notified in accordance with subclause 108.3 within the time referred to in that subclause:

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(a) the Customer may cause such work as is reasonably required to remedy the Defect to be performed by a person other than the Contractor; and

(b) where the licence fees payable under this Licence Agreement are payable periodically - such periodic payments shall abate for any period in which the Defect results in a serious disruption to the Customer's operations until, in the reasonable opinion of the Delegate, the Defect has been remedied, without the Customer being in breach of its obligations under this Licence Agreement and without releasing the Contractor from its obligations.

108.7 Where the Customer arranges for a person other than the Contractor to remedy the Defect in accordance with paragraph 108.6 (a), the cost of that work shall be taken as money due to the Customer under the Contract for the purposes of clause 70.

108.8 The Contractor shall not be liable under this clause to the extent that the Defect is caused by the Customer or a third party, including the failure of the Customer or a third party to maintain the Designated Operating Environment or use the Licensed Software in accordance with the Contractor's Specifications and the Documentation.

109. Software Services and Support Services

109.1 Where the Customer requires Software Services or Support Services in respect of the Licensed Software, those services shall be ordered under Part Eight and Part Nine respectively.

109.2 The Contractor shall, during the Period of the Licence, provide any Update, New Release or other Support Service to the Customer at no additional cost to the Customer if the Contractor usually provides that Update or New Release or other Support Service to its other customers on that basis.

110. Protection and Security of Licensed Software

110.1 The Customer will take appropriate action in accordance with this clause to satisfy its obligations for the protection and security of the Licensed Software.

110.2 All copies of the Licensed Software provided by the Contractor or made by the Customer are the property of the Contractor.

110.3 Subject to paragraph 105.3 (e) and subclause 110.4, the Customer shall only copy the Licensed Software in accordance with the copyright instructions provided by the Contractor and, if reasonably required by the Contractor, shall also include an acknowledgment of copyright on any such copies made.

110.4 Not withstanding paragraph 105.3(e), the Customer may make such number of copies of the Licensed Software as are reasonably required for the purposes of back-up and security.

110.5 If required by the Contractor in writing, the Customer shall keep records of the number and location of copies of the Licensed Software and, if requested in writing by the Contractor, make these records available to the Contractor.

110.6 The Customer shall ensure that prior to disposing of any media, any Licensed Software contained on that media has been erased or otherwise destroyed.

110.7 The Customer shall not, without the Contractor's prior written consent, provide or otherwise make available any Licensed Software in any form to any persons other than to the employees or agents of the Customer or other persons engaged by the Customer to use or support the Licensed Software, provided that if required by the Contractor, such persons (other than employees) shall have signed a Deed of Confidentiality which is in all the circumstances reasonable.

111. Termination and Conversion of Licence

111.1 Where:

(a) a Customer wishes to be granted a different class of licence in respect of the Licensed Software; and

(b) the Contractor has agreed to grant the Customer that different class of licence in respect of the Licensed Software;

the Customer may, by notice in writing to the Contractor, terminate the Licence Agreement and follow:

(c) the procedure set out in clause 9 for the purposes of entering into a new Licence Agreement; and either

(d) the Government Conversion of Licence Plan, being the Conversion of Licence plan set out at clauses 111.2 and 111.3; or

(e) the Contractor's Conversion of Licence Plan, being the Conversion of Licence Plan provided by the Contractor and specified in Schedule 2.

111.2 Where:

(a) a Customer has been granted a licence in respect of a software Product and wishes to terminate that Licence Agreement and convert to a different class of licence that is offered by the Contractor in respect of that Product; and

(b) the amount of the Licence Fee for the new Licence Agreement is equal to or greater than the amount of Licence Fee in respect of the terminated Licence Agreement;

the Contractor shall allow the Customer to set off against the amount that is payable by the Customer in respect of the new Licence Agreement, an amount that, on a pro-rata basis, is attributable to the balance of the period of the terminated Licence Agreement.

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111.3 Where the terminated Licence Agreement granted a licence for a perpetual period, that Licence shall, for the purposes of subclause 111.2, be deemed to have been granted for a period of seven (7) years.

112. Termination on Notice

The Customer may terminate the Licence Agreement by providing the Contractor with 30 days prior written notice of its intention to terminate this Licence Agreement.

113. Consequences of Termination

113.1 The Customer's obligation to make any payments under this Licence Agreement for use of the Licensed Software shall cease in respect of the period after the date of termination or revocation of this Licence Agreement.

113.2 Within 30 days following termination of this Licence Agreement under clause 112:

(a) any deferred payment payable for the period of the Licence up to the date of termination shall be made by the Customer to the Contractor;

(b) any payment made by the Customer prior to the termination date for a future period of the Licence which has not commenced at the termination date shall be refunded by the Contractor to the Customer.

The Customer shall not be entitled to a refund of any payment made for a period which has already commenced at the date of termination.

113.3 Within 30 days following termination or expiry of this Licence Agreement the Customer shall furnish to the Contractor, if requested by the Contractor, a certificate stating that to the best of the knowledge of the Customer's officers or employees concerned, the original and all copies of the Licensed Software and Documentation have been returned to the Contractor or destroyed.

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Government Information Technology Conditions Version 2PART SEVEN - IT Consultancy

PART SEVEN

IT ConsultancyModule

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Government Information Technology Conditions Version 2PART SEVEN - IT Consultancy

PART SEVEN - IT CONSULTANCY MODULE

114. Provision of Consultancy Service

114.1 The Contractor shall perform the Consultancy Service in accordance with the Contract and with the Acceptance Criteria and, to a standard and using a methodology (if any) specified in the Official Order.

114.2 The Contractor shall perform the Consultancy Service at the times and in the manner required in the Official Order and in the Project, Implementation and Payment Plan and shall supply the Deliverables set out in Schedule 6 to the Customer for the Price, Licence Fee or Charge set out in Schedule 6 and in accordance with the Contract.

114.3 Except to the extent set out in the Official Order, in addition to the requirements of clause 59, the Contractor shall ensure that the Specified Personnel shall not, during the period of the Consultancy Service, be engaged on any work other than the Consultancy Service, without the consent of the Customer.

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Government Information Technology Conditions Version 2PART EIGHT - Software Development and Modification

PART EIGHT

Software Developmentand

ModificationModule

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PART EIGHT - SOFTWARE DEVELOPMENT AND MODIFICATION MODULE

115. Contractor to Supply Deliverables including Developed Software

115.1 The Contractor shall, in accordance with the Contract develop, install and test the Developed Software to a methodology and using the development tools specified in the Official Order.

115.2 The Contractor shall supply the Deliverables set out in Schedule 6 for the Price, Licence Fee or Charge set out in Schedule 6 to the Customer at the times, in the manner and otherwise in accordance with the Contract.

116. Developed Software Specifications

The Contractor shall develop, install and test the Developed Software to conform to the Contract Specifications and the Developed Software Detailed Design Specification.

117. New and Updated Facilities

When, during the Contract Period, the Contractor is first making available on a general commercial basis new or upgraded methodologies, development tools or facilities which may be used in the performance of the Contractor's obligations under the Contract, the Contractor shall at that time offer to include them in the Contract at prices and charges no less favourable to the Customer than the charges paid by any other purchasers of substantially similar services from the Contractor in similar circumstances.

118. Existing Software Modification

118.1 Where existing software to be customised or modified is a Deliverable for the purposes of the Contract, the Contractor shall offer to include that software in Schedule 2, and the Customer shall separately order that software under Part Six.

118.2 The terms and conditions of the Licence Agreement arising from that separate order shall be read as part of the Contract and any inconsistency between that Licence Agreement and the Contract shall be resolved in favour of the Contract to the extent of the inconsistency.

119. Developed Software Detailed Design Specification

119.1 The Contractor shall prepare a written Developed Software Detailed Design Specification by the date specified in the Project, Implementation and Payment Plan.

119.2 The Contractor shall keep the Customer informed at all stages while the Developed Software Detailed Design Specification is being prepared so that the Customer’s personnel who will be assessing the Specification for the purposes of subclause 119.5 will have a reasonable knowledge of the content of the Specification by the time the Specification is delivered to them for approval.

119.3 Subject to clause 75, the Developed Software Detailed Design Specification shall be based on, and be consistent with, the Customer’s Functional Specifications.

119.4 The Developed Software Detailed Design Specification shall provide a detailed technical explanation of how the Developed Software will provide the functions specified in the Customer’s Functional Specifications, including, as applicable, details of processes, visual displays and estimates of transaction and data volumes, and include a Developed Software database physical model and the associated data dictionary.

119.5 If the Customer has any objection to the Developed Software Detailed Design Specification provided by the Contractor it shall notify the Contractor promptly of any alterations it reasonably requires. The Contractor shall not unreasonably refuse to amend the Developed Software Detailed Design Specification to take account of the Customer's reasonable requirements.

The Contractor acknowledges that the Customer is relying on the Contractor's expertise in preparing the Developed Software Detailed Design Specification and any notification given, or a failure to notify the Contractor of any change it reasonably requires to be made pursuant to subclause 119.5 shall not be construed as any acceptance of or representation by the Customer as to the suitability or otherwise of the Developed Software Detailed Design Specification.

Where it is specified in the Project, Implementation and Payment Plan, the Customer shall provide the Contractor by the date specified in the Project, Implementation and Payment Plan with an outline of the format and content of screen layouts and reports to be generated by the System in conformity with the Customer’s Functional Specifications. The Contractor shall ensure that the Developed Software Detailed

Design Specification is consistent with such outline. The Contractor shall advise and assist the Customer in the preparation of suchoutline.

120. Methodology for Software Development Procedures and Documentation

120.1 The Contractor shall establish procedures, complying with the methodology (if any) specified in the Official Order:

(a) to identify and control software components of, and changes to, the Developed Software and to maintain the integrity and traceability of the Developed Software at all stages of the development; and

(b) to control the content of the Documentation relating to the Developed Software that is to be delivered under the Contract.

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120.2 The procedures referred to in subclause 120.1 must include methods for:

(a) identifying and locating revisions of the software as it is developed;

(b) ensuring compliance with the change control requirement as set out in subclauses 75.3 to 75.5;

(c) controlling the issue of development revisions of the software; and

(d) identifying the extent of the performance towards the Project, Implementation and Payment Plan.

120.3 The Contractor shall reference and document procedures for corrective action to the Developed Software and associated Documentation including:

(a) adoption of a system to report problems and deficiencies;

(b) examination of problem and deficiency reports to determine their causes, and to prepare corrective measures;

(c) analysis of deficiency trends, to prevent the development of software not conforming to the Developed Software Specifications;

(d) review of corrective measures, to determine their effectiveness;

(e) provision for defining all necessary repetition of testing and reviews to determine the effectiveness of modifications to any item of the Developed Software; and

(f) provision for ensuring that timely corrective action is taken by reviewing deficiencies and tracking their clearance.

121. Developed Software Warranty

121.1 The Contractor warrants that during the Warranty Period:

(a) the Developed Software (including all Updates) will comply with the Developed Software Detailed Design Specification and will operate on and will be compatible with the Designated Operating Environment; and

(b) all other Deliverables will comply with the Contract Specifications.

121.2 If at any time during the Warranty Period the Customer believes that there is a defect in a Deliverable such that the Deliverable does not comply with, or cannot be used in accordance with the specifications referred to in subclause 121.1 the Customer shall notify the Contractor of that defect.

121.3 Without prejudice to any other right or remedy of the Customer (whether arising by statute or otherwise), the Contractor shall at its own cost and expense within a time agreed between the Parties, or if no time is agreed, within a time that is reasonable in all the circumstances, remedy the defect referred to in subclause 121.2 on notification by the Customer of that defect.

121.4 The Contractor may, before the time referred to in subclause 121.3 has expired, take such measures as are reasonably appropriate in all the circumstances (including, where appropriate, a work-around) to enable the Customer to continue to productively use the Deliverable.

121.5 All remedial work or replacement of the whole or any part of the Deliverable carried out or supplied pursuant to subclause 121.3 is hereby warranted to the same extent as the Deliverable from the date the work was completed or the part was replaced, as the case may be.

121.6 If the Contractor fails to remedy a notified defect in accordance with subclause 121.3 within the time referred to in that subclause, the Customer may cause such work as is reasonably required to remedy the defect to be performed by a person other than the Contractor.

121.7 Where the Customer arranges for a person other than the Contractor to remedy the defect in accordance with subclause 121.6, the cost of that work shall be taken as money due to the Customer under the Contract for the purposes of clause 70.

The Contractor shall not be liable under this clause to the extent that the defect is caused by the Customer or a third party, including the failure of the Customer or the third party to maintain the Designated Operating Environment, or operate the Deliverable in accordance with the Documentation referred to in clauses 64 and 120.

122. Support Services

Where the Customer requires Support Service in respect of the Developed Software that Service shall be ordered under Part Nine.

123. Source Code

123.1 The Contractor shall, when the Developed Software is delivered to the Customer in accordance with the Project, Implementation and Payment Plan, also deliver to the Customer:

(a) unless otherwise specified in the Official Order, the Developed Software source code suitable for compilation together with such documentation providing sufficient information as to allow the Customer to amend the source code if necessary; and

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(b) if specified in the Official Order, all source code for software tools used to assist the development of the Developed Software including to control and test the Developed Software where such software tools are created by or on behalf of the Contractor for the purpose of the Contract and where such software tools will be required to enable the Customer to operate and support the Developed Software;

which source code shall be provided in a format and on a medium which is suitable for compilation and use in the Designated Operating Environment.

123.2 Interim copies of the source code referred to in subclause 123.1 shall be delivered by the Contractor to the Customer at the times specified in the Project, Implementation and Payment Plan or at any time upon demand by the Delegate.

123.3 Where the Developed Software has been produced using software tools, Object Libraries or other devices or methodologies owned by the Contractor or any other party, the Contractor shall inform the Customer as to the nature and use of those devices in the production of the Developed Software.

123.4 Where the software tools, Object Libraries or other devices or methodologies are required to maintain or enhance the Developed Software, if required by the Customer, the Contractor shall provide the Customer with a licence, as specified in the Official Order, to use those devices for the purpose of maintaining and enhancing the Developed Software.

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Government Information Technology Conditions Version 2PART NINE - Software Support

PART NINE

Software Support Module

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PART NINE - SOFTWARE SUPPORT MODULE

124. Support Service

The Contractor shall, in accordance with the Contract, provide the Support Service to the Customer for the period, during the hours and in respect of the Supported Software specified in the Official Order.

125. Warranty (Software Support)

125.1 The Contractor warrants that during the period of the Support Service the Supported Software (including all Updates and New Releases) will comply with the Contract Specifications and will operate on and will be compatible with the Designated Operating Environment.

125.2 If at any time during the period of the Support Service the Customer believes that there is a Defect in the Supported Software such that the Supported Software does not comply with or cannot be used in accordance with the Contract Specifications, the Customer shall notify the Contractor of that perceived Defect.

125.3 Without prejudice or any other right or remedy of the Customer (whether arising by statute or otherwise), the Contractor at its own cost and expense shall within a time agreed between the Parties, or if no time is agreed, within a time that is reasonable in all the circumstances, remedy the Defect referred to in subclause 125.2 on notification by the Customer of that Defect.

125.4 The Contractor may, before the time referred to in subclause 125.3 has expired, take such measures as are reasonably appropriate in all the circumstances (including a work-around) to enable the Customer to continue to productively use the Supported Software.

125.5 All remedial work or replacement of the whole or any part of the Supported Software carried out or supplied pursuant to clause 125.3 is hereby warranted to the same extent as the Supported Software from the date the work was completed or the part was replaced as the case may be.

125.6 If the Contractor fails to remedy a Defect notified in accordance with subclause 125.3 within the time referred to in that subclause, the Customer may:

(a) cause such work as is reasonably required to remedy the Defect to be performed by a person other than the Contractor; and

(b) where the charges in respect of the Support Service payable under the Contract are payable periodically in respect of the Supported Software - such periodic payments shall abate in respect of any period in which the Defect results in a serious disruption to the Customer's operations until, in the reasonable opinion of the Delegate, the Defect has been remedied, without the Customer being in breach of its obligations under the Contract and without releasing the Contractor from its obligations.

125.7 Where the Customer arranges for a person other than the Contractor to remedy the Defect in accordance with subclause 125.6, the costs of that work shall be taken as money due to the Customer under the Contract for the purposes of clause 70.

125.8 The Contractor shall not be liable under this clause to the extent that the Defect is caused by the Customer or a third party, including the failure of the Customer or a third party to maintain the Designated Operating Environment or operate the Supported Software in accordance with the Contractor's Specifications and the operating manuals relating to the Supported Software.

126. Updates and New Releases

126.1 Unless otherwise specified in the Official Order, where an Update or a New Release for the Supported Software becomes available, the Contractor shall promptly notify the Customer accordingly and advise the Customer of the specifications for that Update or New Release, as the case may be.

126.2 When reasonably required to do so by the Customer, the Contractor shall demonstrate the extent to which the Update or New Release is capable of providing the functions and performance specified in the Contract Specifications. Where the Contractor seeks to charge for such demonstration, the Customer shall be liable for such charge only where that charge is set out in Schedule 2 and specified in the Official Order.

126.3 The Customer is not obliged to accept from the Contractor an Update or New Release of the Supported Software, but where the Customer elects not to accept an Update or New Release of the Supported Software the Contractor shall not be liable for any loss or damage which the Customer suffers as a result of Defects in the Supported Software, which are remedied by the Update or New Release.

126.4 Where the Customer elects not to accept an Update or New Release of the Supported Software the Contractor shall, if required by the Customer, provide Support Service for the version of the Supported Software being used by the Customer for a period of 18 months (or such longer period as is agreed in writing between the Parties) after that particular Update or New Release has been offered to the Customer provided that the Customer continues to possess a valid licence for that version of the Supported Software.

126.5 In respect of Supported Software which is licenced to the Customer, the Customer shall, if reasonably possible, comply with a request from the Contactor to return the Supported Software to the Contractor in substitution for an Update or New Release but, if it is not reasonably possible to return the Licensed Software, the Customer shall, if required by the Contractor, certify that the Licensed Software is not being used.

126.6 Where the Customer accepts an Update or New Release:

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(a) the Contract applies in all respects to the Update or New Release to the extent it is incorporated in or replaces the Supported Software; and

(b) the Contractor's Specifications shall be deemed to be amended to the extent that the specifications for the Update or New Release supersede the existing Contractor's Specifications.

126.7 No Update or New Release shall be installed by the Contractor without the Customer's consent in writing.

126.8 Each Update or New Release shall be provided in a format and on a medium which allows ready installation and operation of the Update or New Release in the Designated Operating Environment.

127. Documentation and Training (Updates and New Releases)

The Contractor shall if requested by the Customer provide in respect of Updates and New Releases:

(a) Documentation pursuant to clause 64 as if that Update or New Release was a Product; and

(b) Training at the costs (if any) specified in Schedule 2 to enable staff of the Customer to operate the Update or New Release in the Designated Operating Environment.

128. Termination on Notice

The Customer may terminate the Contract for the provision of the Support Service by providing the Contractor with 30 days prior written notice of its intention to terminate the Contract.

129. Consequences of Termination

129.1 The Customer's obligation to make any payments under the Contract for the provision of Support Service shall cease after the date of termination of the Contract.

129.2 Within 30 days following termination of the Contract the charges paid or payable for the provision of Support Services in respect of any period after such termination shall be adjusted between the Parties so as to give effect to subclause 129.1.

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Government Information Technology Conditions Version 2PART TEN - Systems Integration

PART TEN

Systems Integration Module

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PART TEN - SYSTEMS INTEGRATION MODULE

130. Supply and Integration of System

The Contractor shall, in accordance with the Contract, supply and Integrate the System to comply with the Contract Specifications.

131. Contractor as Agent

131.1 The Customer hereby authorises the Contractor to acquire as its agent the products and services specified in Schedule 7 upon the terms and conditions specified in that Schedule.

131.2 The Contractor shall obtain the written approval of the Delegate prior to any acquisition under subclause 131.1 and to the terms and conditions in respect of such acquisition. Such approval shall not be unreasonably withheld. Such approval shall not be construed as in any way lessening the Contractor's obligation to ensure the System meets the Contract Specifications.

131.3 Nothing in this Contract shall be taken to authorise the Contractor, when it is acting as the agent of the Customer under the Contract, to institute any legal action or arbitration proceedings in the name of the Customer.

131.4 The Contractor shall discharge the obligations of the Delegate in respect of the Acceptance Tests specified in the Official Order required pursuant to the Common Use Contract from which the relevant product or service has been acquired on behalf of the Customer.

132 Contractor Supplied Equipment (CSE)

The Contractor shall supply the CSE set out in Schedule 8 and specified in the Official Order. In respect of CSE which is not set out in Schedule 8, the Parties shall follow the procedure set out in subclause 9.7.

133. Maintenance of Customer Supplied Items (CSI)

133.1 Where it is specified in the Official Order, the Contractor is hereby appointed as agent to manage any existing maintenance obligations in respect of CSI specified in the Official Order during the Contract Period.

133.2 Where it is specified in the Official Order, during the Contract Period the Contractor shall provide maintenance of the CSI in accordance with the Hardware Maintenance Module Conditions.

134. Warranty (The System)

134.1 The Contractor warrants that the System or a part of the System will, during the applicable Warranty Period, comply with the Contract Specifications.

134.2 Subject to subclause 54.9, the Contractor shall at its own cost, undertake such repair, replacement or other work in respect of the System as is necessary, in a timely and workmanlike manner, to ensure that the System compiles with the Contract Specifications and all remedial work, or replacement of the whole or any part carried out or supplied by the Contractor is warranted by the Contractor to the same extent as the System from completion of that remedial work or replacement.

134.3 Where the Contractor replaces parts of the Hardware:

(a) the replacement parts shall be new or warranted as new;

(b) the replacement parts shall become the property of the Customer on installation (where the Contractor has replaced components owned by the Customer);

(c) the replaced component shall become the property of the Contactor but the Contractor shall comply with any directions given by the Delegate concerning the protection of the Customer's classified matter; and

(d) the Customer shall reimburse the Contractor any reasonable and substantiated costs incurred by the Contractor in complying with any directions given under paragraph 134.3(c).

134.4 Where the Contractor does not comply with subclause 134.2 within a reasonable time after receipt of notice to do so, the Customer shall, at its discretion, have the right to perform or have performed that work or replacement as the case may be at the cost of the Contractor, which reasonable cost shall be taken as money due to the Customer under the Contract for the purposes of clause 70.

134.5 The Contractor shall not be liable under this clause to the extent that the defect is caused by the Customer or a third party, including the failure of the Customer or the third party to maintain the Designated Operating Environment or operate the System in accordance with the Contract Specifications and the Documentation.

134.6 For the purposes of undertaking the Contractor's warranty obligations under subclause 134.2, the Contractor is hereby appointed as agent for the Customer to enforce any warranty in respect of CSI.

134.7 To the extent that the Contractor is unable, through no fault of the Contractor, to enforce warranties for CSI referred to in subclause 134.6 and the inability affects the Contractor's obligations under subclause 134.2, the Contractor shall promptly advise the Delegate and shall be entitled to an extension of time in accordance with the Contract, in addition to any other rights which have accrued or might accrue.

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134.8 At the end of the Warranty Period, if there are any outstanding warranty enforcement matters or maintenance obligations in respect of CSI the Contractor shall notify the Delegate in writing of those outstanding matters and obligations.

135. Acceptance Testing (The System)

135.1 The Acceptance Tests to be performed for the System and the Acceptance Criteria for those tests are described in Schedule 9. The tests may include the Acceptance Tests to be conducted pursuant to clause 55 in respect of CSE Products. In respect of CSI acquired by the Contractor as agent of the Customer, the tests include those to be conducted by the Contractor under subclause 131.4 and Schedule 9 sets out the period over which the Acceptance Tests for the System are to be run.

135.2 The Acceptance Tests for the System shall be carried out at the times set out in the Project, Implementation and Payment Plan with the object of demonstrating that the System or part thereof being tested complies with the Contract Specifications.

Acceptance Test Data

135.3 Unless otherwise agreed between the Parties, the Customer shall commence and diligently pursue the preparation of, and provide to the Contractor, the Acceptance Test Data by the date specified in the Project, Implementation and Payment Plan or where there is no such Plan, within a reasonable period prior to the commencement of the Acceptance Tests.

135.4 The Acceptance Test Data prepared by the Customer shall be reasonably representative of the data to be processed by the System.

135.5 The Contractor may only use the Acceptance Test Data to enable it to fulfil its obligations to the Customer in accordance with the Contract.

135.6 On completion of the Acceptance Tests the Contractor shall deal with the Acceptance Test Data as directed by the Delegate.

Administration

135.7 The role of each Party in carrying out the Acceptance Tests for the System is set out in Schedule 9. Before the Acceptance Tests begin, the Delegate and the Contractor shall each nominate one or more representatives to be present, or if agreed between the Parties, available for consultation, throughout the Acceptance Tests.

135.8 Subject to the provisions of this clause, the Customer's representative (in this clause 135 called "the Supervisor") shall be responsible for:

(a) defining after consultation with the Contractor the test schedule;

(b) recording the level of functionality, compatibility, resilience, reliability and performance achieved in testing each day;

(c) requesting the Contractor to verify, diagnose or correct any malfunction, defect or suspected error in the System or test programs;

(d) recording faults, and actions taken to remedy them as appropriate; and

(e) ensuring that any of the Customer's equipment to be used in the Acceptance Tests will be made available for the Acceptance Tests and will perform satisfactorily.

135.9 The Contractor's representative shall be responsible for:

(a) providing all Documentation for the Contractor's test programs and procedures prior to commencement of the Acceptance Tests;

(b) the verification, diagnosis and correction of any malfunction, defect or suspected error in the System or test programs; and

(c) making available to the Supervisor before 1600 hours on the following Normal Working Day, written details of any fault found, its cause, and corrective action taken.

135.10 Where the Customer is to carry out the Acceptance Tests, the Contractor shall co-operate in the carrying out of the Acceptance Tests.

135.11 Where the Contractor is to carry out Acceptance Tests in respect of the System or part thereof, the Contractor must give the Delegate such number of days of prior notice as is set out in Schedule 9 (or such other period of notice as may be later agreed in writing between the Parties) of the date on which it is ready to undertake testing.

135.12 The Delegate shall determine whether the Contractor's or the Customer's staff shall operate the System equipment during the Acceptance Tests for the System.

Maintenance during Acceptance Testing Period

135.13 Except as otherwise provided in Schedule 9 maintenance and support of the System during the Acceptance Testing Period shall reflect the level of maintenance and support expected for normal operations.

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Test Environment and Consumable Supplies

135.14 The Customer shall provide all elements of the site environment and the operational environment for the purposes of conducting the Acceptance Tests, except those elements to be provided by the Contractor as are specified in the Official Order.

135.15 The Customer shall supply all consumable items of an agreed quality (such as printer paper and printer ribbons) and all magnetic tapes, disk packs and other similar off-line data storage media required for the Acceptance Tests.

Delay during Acceptance Testing

135.16 If the Contractor performs any repairs or corrects any defects in respect of the System, or replaces any constituent part thereof during the Acceptance Testing Period:

(a) the Delegate may require all or any Acceptance Tests in relation to the System to be re-run as are necessary to establish that the defect has been repaired or corrected, or the constituent part has been replaced, as the case may be;

(b) the Acceptance Testing Period shall be extended to accommodate any delays arising directly from that repair, correction or replacement or any delay arising from maintenance and support under subclause 135.13, or from the re-running of any Acceptance Tests under this subclause; and

(c) any additional costs in relation to the extension of the Acceptance Testing Period or the re-running of any Acceptance Tests under this clause shall be borne by the Contractor.

135.17 In the event of power failure, air-conditioning failure or other causes outside the control of the Contractor:

(a) the Delegate shall approve an extension of the Acceptance Testing Period to accommodate any delays caused directly as a result of those circumstances;

(b) the Customer shall pay any additional costs reasonably incurred by the Contractor if the Contractor so requests, and substantiates the costs, in writing; and

(c) The Contractor shall ensure that the System is ready to resume or recommence Acceptance Testing when conditions are again satisfactory and stable.

Supplementary Tests

135.18 The Customer may at any time during the Acceptance Testing Period itself carry out or require the Contractor to carry out additional or different tests being the Supplementary Tests which are reasonably required in order to establish whether the System complies with the Contract Specifications.

135.19 Subject to subclause 135.17, the costs of any Supplementary Tests shall be paid for by the Customer.

135.20 Where the Supplementary Tests establish that the System does not comply with the Contract Specifications, the costs of such of those Supplementary Tests as were reasonably required to establish non-compliance shall be borne by the Contractor.

Certificate of Acceptance

135.21 No CSE Product or the System (or part thereof) shall be deemed to have been accepted until a Certificate of Acceptance has been issued in respect thereof.

135.22 Within two (2) Normal Working Days of completion of the Acceptance Tests, the Delegate shall issue a Certificate of Acceptance for the System (or part thereof) specifying the date of issue of that Certificate, but that Certificate shall not be issued unless the Delegate is satisfied on reasonable grounds that the Acceptance Tests have been passed.

135.23 Where the Acceptance Tests for the System have not been completed by the expiry of the Acceptance Testing Period through the fault of the Contractor the System shall be deemed to have failed the Acceptance Tests.

Failure to pass Acceptance Tests

135.24 If in the reasonable opinion of the Delegate the Acceptance Tests demonstrate that the System (or part thereof) is not in accordance with the Contract then the Delegate may, without prejudice to the Customer's own rights and remedies, by written notice to the Contractor stating the Customer’s grounds, elect to fix a further Acceptance Testing Period for carrying out further Acceptance Tests on the System (or part thereof) on the same terms and conditions as the initial Acceptance Tests, save that all costs which the Customer may incur as a result of such tests shall be reimbursed by the Contractor. If the Contract so requests, the Customer shall substantiate those costs to the Contractor.

135.25 If the System fails the tests provided for in this clause then the Customer shall be entitled to, by notice in writing to the Contractor:

(a) accept:(i) the System (or part thereof); or(ii) a variation of the System (or part thereof);

subject to a reasonable reduction in the Contract Price, Licence Fee or Charge as the case may be; or

(b) reject the System (or part thereof).

135.26 If the Customer rejects the System in accordance with this clause, the Customer may either return any CSE Product to the Contractor or by notice in writing to the Contactor, require the Contractor to remove that CSE Product.

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135.27 Where the Customer requires removal of the CSE Product pursuant to this clause, the Contractor shall at its expense, de-install and remove that CSE Product within 14 days of that rejection.

135.28 No Price, Licence Fee or Charge as the case may be shall be payable in respect of a CSE Product rejected pursuant to this clause, but if any Price, Licence Fee or Charge has been paid therefor it shall be refunded in full within 14 days of that rejection.

135.29 In the absence of a written Agreement as to the reduction of the Contract Price, Licence Fee or Charge within 14 days of the notice referred to in subclause 135.25 the Customer may reject the System or the relevant part thereof in accordance with paragraph 135.25(b).

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Government Information Technology Conditions Version 2PART ELEVEN - Data Conversion and Migration

PART ELEVEN

Data Conversionand

MigrationModule

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Government Information Technology Conditions Version 2PART ELEVEN - Data Conversion and Migration

PART ELEVEN - DATA CONVERSION AND MIGRATION MODULE

136. Data Conversion and Migration Services

136.1 The Contractor shall, in accordance with the Contract, provide the Data Conversion and Migration Service specified in subclause 136.3 in respect of the Customer's data identified in the Official Order.

136.2 The Customer shall by the date specified in the Project, Implementation and Payment Plan extract and copy onto magnetic media, compile and provide in a format specified in the Project, Implementation and Payment Plan the Customer's data for loading onto the System in accordance with the Project, Implementation and Payment Plan and make adequate back-up copies of the Customer’s data and maintain the original and back-up copies of the Customer’s data in a secure manner.

In addition to any other rights which have or might accrue, the Contractor is not liable for any delays occasioned by the Customer failing to meet its obligations under this clause.

136.3 Except to the extent otherwise specified in the Official Order, the Contractor shall, in accordance with the dates specified in the Project, Implementation and Payment Plan:

(a) create data extraction specifications describing the requirements for the Data Conversion and Migration Service;

(b) develop in accordance with Part Eight, or obtain in accordance with Part Six, and then deliver and install the necessary data migration software to convert the Customer's data to a form suitable for use directly with the System;

(c) produce a test plan that includes a description of tests (in this clause called "DMS Tests") to be performed for the purpose of assessing whether the Customer's data has been converted and migrated in accordance with the Contract Specifications and the expected results of those tests;

(d) amend the DMS Tests to take account of the Customer's reasonable requirements;

(e) assist the Customer to perform the DMS Tests and if reasonably necessary, modify the Data Conversion and Migration Service until the results of the DMS Tests are satisfactory;

(f) develop in accordance with Part Eight, or obtain in accordance with Part Six, and then deliver and install software that will allow entry into the System of supplementary data (for example, codification data, referential data, help text and editing parameters), if this supplementary data is required in the operation of the System;

(g) convert the Customer's data to a format specified in the Project, Implementation and Payment Plan or the Official Order as the case may be so that the Customer's data is suitable for use directly with the System;

(h) perform any other functions specified in the Official Order;

and do all such other things necessary to ensure that the conversion and migration of the Customer's data is successfully achieved.

136.4 The Customer shall, with assistance from the Contractor, test the migrated data in accordance with the DMS Tests for the purpose of ensuring that the conversion and migration of Customer's data has been achieved to the reasonable satisfaction of the Delegate.

136.5 The Contractor shall, when the Data Migration Software is delivered to the Customer in accordance with the Contract, also deliver to the Customer:

(a) Unless otherwise specified in the Official Order, the Data Migration Software source code suitable for compilation together with such documentation providing sufficient information as to allow the Customer to amend the source code if necessary; and

(b) if specified in the Official Order, all source code for software tools used to assist in the development of the Data Migration Software including to control and test the Data Migration Software where such software tools are created by or on behalf of the Contractor for the purpose of the Contract and where such software tools shall be required to enable the Customer to operate and support the Data Migration Software.

136.6 The Contractor warrants that the Customer's data, when migrated in accordance with the Contract, will accurately reflect the data that existed prior to migration and comply with Contract Specifications.

136.7 In the event that the Customer's data is amended or otherwise edited or enhanced by the Contractor in the course of and as part of the Data Conversion and Migration Service, the Contractor warrants that the Customer's data when migrated in accordance with the Contract complies with the Contract Specifications.

136.8 Where the Data Migration Software has been produced using software tools, Object Libraries or other devices or methodologies owned by the Contractor or any other party, the Contractor shall inform the Customer as to the nature and use of those devices in the production of the Data Migration Software.

136.9 Where the tools, Object Libraries or other devices or methodologies are required to maintain or enhance the Data Migration Software, if required by the Customer, the Contractor shall provide the Customer with a licence, as specified in the Official Order, to use those devices for the purpose of maintaining and enhancing the Data Migration Software.

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Government Information Technology Conditions Version 2PART TWELVE - Packaged Software Licensing

PART TWELVE

Packaged Software LicensingModule

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PART TWELVE - PACKAGED SOFTWARE LICENSING MODULE

137. Licence

137.1 This Licence Agreement applies to software specified in Schedule 2 as being Packaged Software.

137.2 In this Licence Agreement, a reference to anything to be done, any obligation to be met, any warranty to be given or any liability to be assumed by the Distributor shall be construed as binding the Contractor to procure the doing of that thing, performance of that obligation, giving and honouring of that warranty or assumption and meeting of that liability, as the case may be, by the Distributor as if the Distributor were a Party hereto and, in the event of any failure by the Distributor to do so, by the Contractor itself.

137.3 In this Licence Agreement, a reference to any obligation owed by the Customer to the Distributor shall be construed as binding the Customer to the Contractor to perform that obligation for the benefit of the Distributor as if the Distributor were a Party hereto.

137.4 The Contractor warrants that it has the right and authority to grant this Licence in Australia to the Customer.

137.5 The Contractor hereby grants to the Customer a non-exclusive, non-transferable licence of the class specified in Schedule 2 and described in the Official Order to use and copy the Packaged Software subject to any restrictions specified in the class of licence or as set out in this Licence Agreement and in the Licence Details Policy Statement (LDPS).

137.6 For the class of licence described in the Official Order, this Licence entitles the Customer to:

(a) acquire for the prices specified in Schedule 2:(i) a licence to use and copy the Packaged Software such number of times as is specified in the Official Order and

the LDPS without supply of storage media or Documentation, or(ii) together with a licence referred to in sub-paragraph (i), the Packaged Software contained on storage media and (if

required) Documentation as specified in the Official Order, or(iii) Documentation as specified in the Official Order for Packaged Software for which the Customer holds an existing

licence;

(b) carry out Acceptance Tests (if any) in respect of the Packaged Software during the Testing Period;

(c) use the Packaged Software in machine-readable form on, and store the Packaged Software in a processor which is capable of accepting and executing the Packaged Software in the format in which it has been supplied to the Customer provided that only one copy of the Packaged Software is used on any one processor at any time;

(d) use the Packaged Software on a network for up to the number of concurrent uses specified in the Official Order provided that a licence fee has been paid for each workstation on the network that is simultaneously using the Licensed Software at any time. Installing the Licensed Software onto a Server for the purposes of this paragraph does not count as one use;

(e) use the Packaged Software on a backup system when the processor on which the Packaged Software is used or an associated unit required for use of the Packaged Software is temporarily inoperable until operable status is restored and processing on the backup system is completed; and

(f) use the Documentation in accordance with this Licence Agreement.

137.7 This Licence Agreement does not entitle the Customer to on-sell any copy of the Packaged Software which it may have in its possession but a Customer is entitled to continue to use and possess the Packaged Software and Documentation held by it in circumstances where the Customer undertakes a change of designation or change of location but remains in possession of the Packaged Software and Documentation.

137.8 If the Packaged Software is permanently installed on the hard disk or other storage device of a processor (other than a network server) and one person uses that processor more than 80% of the time that it is in use, this Licence Agreement entitles that person to use of the Packaged Software on a portable or home computer provided that the Packaged Software is not in concurrent use on the first mentioned processor.

137.9 The Customer shall not, in contravention of the Copyright Act 1968 (Cth.), reverse assemble or reverse compile the Packaged Software in whole or in part.

138. Period of Licence

This Licence Agreement shall commence on the date specified in the Official Order and shall remain in force for the period during which the Customer remains in possession of the Packaged Software, or if the Licence Agreement is terminated earlier in accordance with this Licence Agreement, the period commencing on the date specified in the Official Order and ending on the expiration of the day on which the Licence Agreement is terminated.

139. Supply of Packaged Software

139.1 The Contractor shall supply the Packaged Software (including the number of copies of storage media and Documentation as specified in the Official Order) and the LDPS to the Customer in accordance with this Licence Agreement. Where the Customer indicates in the Official Order that storage media for the Packaged Software (being software already in use by the Customer) is not required, the Packaged Software shall be deemed to be received from the time of delivery of the LDPS. Each copy of the Packaged Software shall be in the format and on the storage medium specified in the Official Order.

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139.2 The Contractor shall deliver, install or implement the Packaged Software to the extent and in the manner specified in the Official Order or the Project, Implementation and Payment Plan.

139.3 Charges for delivery or installation of the Packaged Software provided by the Contractor shall be calculated in accordance with Schedule 2.

140. Supply of Packaged Software through Distributors and Dealers

140.1 The Contractor may appoint Distributors to supply Packaged Software to the Customer under this Licence Agreement. The Contractor shall appoint only those Distributors specified in Schedule 2 for this purpose.

140.2 The Distributor may appoint Dealers to accept the Official Order from the Customer. Only those Dealers specified in Schedule 2 may accept the Official Order from the Customer.

140.3 The Contractor may:

(a) grant to the Distributor a licence to reproduce Packaged Software to the extent necessary; or

(b) direct the Distributor to supply only Packaged Software supplied by the Contractor;

in order to fulfil the Official Order lodged by the Customer with a Dealer.

140.4 The Distributor shall, at no additional cost to the Customer, establish all necessary facilities for the effective conduct and management of its responsibilities under this Licence Agreement.

140.5 The Distributor shall take all reasonable measures in accordance with currently accepted commercial practice to ensure the accuracy and quality of any storage media supplied to the Customer, including by:

(a) adhering to any specific storage media duplication standards advised from time to time by the Contractor;

(b) where required by the Contractor, incorporating on any storage media duplicated by the Distributor for the Customer, codes which cause the Packaged Software to display when used the name of the Contractor and a message indicating that the software is licensed to the Customer;

(c) affix to each set of storage medium duplicated by the Distributor for the Customer a visible marking in a form approved from time to time by the Contractor indicating the ownership of intellectual property in the Packaged Software.

140.6 The Distributor shall ensure that the Official Order is filled in accordance with the particular requirements specified in that Official Order by the Customer.

140.7 The Distributor shall complete a standard form LDPS as supplied by the Contractor with the Official Order and shall forward the LDPS to the Customer together with the storage media and Documentation (if any) to be delivered.

140.8 Where the Contractor has appointed Distributors for the purposes of this clause, the Customer shall lodge the Official Order with the Distributor or Dealer as the case may be and the Distributor or Dealer shall ensure that the Official Order is filled in accordance with the requirements of this Licence Agreement.

140.9 The Distributor shall ensure that the Dealer does not make any representation, warranty or promise as to suitability for a purpose of the Packaged Software except in accordance with instructions contained in the Product Specifications or other representations made by the Contractor about the Packaged Software.

141. Product Warranty (Packaged Software)

141.1 The Contractor warrants that during the Warranty Period the Packaged Software (including all Updates and New Releases) will:

(a) perform in accordance with the Product Specifications and any representations made in writing by the Contractor about the Packaged Software and relied on by the Customer; and

(b) where the Contractor claims in the Product Specifications or in any other Document that the Packaged Software is compatible with any processor - be compatible with that processor.

141.2 The Distributor warrants that the Packaged Software (including all Updates and New Releases) will:

(a) perform in accordance with any representations made by the Distributor about the Packaged Software and relied on by the Customer; and

(b) where the Distributor claims in any Document that the Licensed Software is compatible with a processor - be compatible with that processor.

141.3 If at any time during the Warranty Period the Customer believes that there is a Defect in the Packaged Software such that the Packaged Software does not comply with, or cannot be used in accordance with, the Product Specifications, the Customer shall notify that Contractor immediately of that perceived Defect.

141.4 Without prejudice to any other right or remedy of the Customer (whether arising by statute or otherwise), the Contractor shall within a time agreed between the Parties, or if no time is agreed, within a time that is reasonable, in all the circumstances, either remedy the Defect referred to in subclause 141.3 on notification by the Customer of that Defect or replace the defective Packaged Software.

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141.5 The Contractor shall not be liable under this clause to the extent that the Defect is caused by the Customer or a third party, including the failure of the Customer or a third party to maintain the Specified Operating Environment or use the Packaged Software in accordance with the Contractor's Specifications and the Documentation.

142. Software Services and Support Services

142.1 Where the Customer requires Software Services or Support Services in respect of the Packaged Software, those services shall be ordered under Part Eight and Part Nine respectively.

142.2 The Contractor shall, during the Period of the Licence, provide any Update, New Release or other Support Service to the Customer at no additional cost to the Customer if the Contractor usually provides that Update or New Release or other Support Service to its other customers on that basis.

143. Protection and Security of Packaged Software

143.1 The Customer shall take appropriate action in accordance with this clause to satisfy its obligations for the protection and security of the Packaged Software.

143.2 All copies of the Packaged Software provided by the Contractor or made by the Customer are the property of the Contractor.

143.3 Subject to the rights of the Customer under this Licence Agreement, the Customer shall only copy the Packaged Software in accordance with the copyright instructions provided by the Contractor and, if reasonably required by the Contractor, shall also include an acknowledgment of copyright on any such copies made.

143.4 The Customer may make such number of copies of the Packaged Software as are reasonably required for the purposes of back-up and security.

143.5 I f required by the Contractor in writing, the Customer shall keep records of the number and location of copies of the Packaged Software and, if requested in writing by the Contractor, make these records available to the Contractor.

143.6 The Customer shall ensure that prior to disposing of any storage media, any Packaged Software contained on that media has been erased or otherwise destroyed.

143.7 The Customer shall not, without the Contractor's prior written consent, provide or otherwise make available any Packaged Software in any form to any persons other than to the employees or agents of the Customer or other persons engaged by the Customer to use or support the Packaged Software.

144. Specified Operating Environment

144.1 The Contractor shall:

(a) state the Specified Operating Environment for the Packaged Software in the Product Specifications; or

(b) if the Specified Operating Environment is not stated in the Product Specifications - notify the Customer in writing no later than the time the Contract is formed of the Specified Operating Environment;

and if at any time the Contractor changes the Specified Operating Environment, the Contractor shall promptly notify the Customer in writing of that changed Specified Operating Environment.

144.2 When the Customer is notified of the Specified Operating Environment, the Customer shall, to the extent that is has control over the Specified Operating Environment applicable to the Packaged Software, maintain that Environment during the use of the Packaged Software.

144.3 The Contractor shall not be liable for any damage caused to the Packaged Software, data or the processing environment, if the Specified Operating Environment is not maintained by the Customer or a third party in accordance with this clause.

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Government Information Technology Conditions Version 2PART THIRTEEN - Facilities Management Services

PART THIRTEEN

Facilities Management ServicesModule

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PART THIRTEEN - FACILITIES MANAGEMENT SERVICES MODULE

145. Provision of Facilities Management Services

145.1 The Contractor shall, in accordance with the Contract, provide the Facilities Management Services to the Customer:

(a) in respect of the Configuration;

(b) in accordance with the details and for the changes set out in Schedule 2 and specified in the Official Order;

(c) in accordance with the particulars specified in the Service Plan; and

(d) for the term specified in the Official Order which term shall commence on the date set out in the Official Order.

145.2 Facilities Management Services may be extended by the Customer for further periods beyond the term specified in the Official Order subject to the review procedures required by clause 149.

146. Level of Service

The Contractor shall provide, during the Service Period for which the Facilities Management Services are required by the Customer, the level of service specified in the Service Plan applicable to that Service Period or as otherwise agreed in the Official Order.

147. Service Period

147.1 The Customer shall nominate Service Periods for which the Facilities Management Services are required, which periods may comprise:-

(a) during normal working days:-(i) the period between 8:00 am and 5:00 pm subject to extension in one (1) hour periods agreed between the Parties

and specified in the Official Order (Prime Time) and;(ii) additional periods contiguous with the initial period specified in sub-paragraph (i) as specified in the Official Order

and;

(b) on a Saturday, Sunday or Public Holiday, a period agreed between the Parties (if any) and specified in the Official Order.

147.2 The Customer may vary the Service Period specified in subclause 147.1 upon the Delegate giving not less than 30 days notice to the Contractor and where the Customer varies the Service Period, the Facilities Management Services and the Charges shall be varied in accordance with the Contract.

147.3 The Delegate may authorise temporary variations to the Service Period by giving not less than 48 hours notice to the Contractor and during the temporary variations the Contractor shall provide the level of Facilities Management Services provided for during temporary extensions in accordance with clause 146 for the Charges varied in accordance with the Contract.

147.4 Where the Delegate gives less than 48 hours notice to the Contractor that a temporary variation to the Service Period is required, the Contractor shall use its best endeavours to provide the same level of service as is applicable under subclause 147.3.

148. Variation of Configuration

148.1 Where the Customer provides the Configuration, the Customer may for any reason:-

(a) add an item of hardware or software of the same or similar types to that covered under the Service Plan;

(b) withdraw an item of hardware or software from the Service Plan; and

(c) substitute an item of hardware or software under the Service Plan with another item of hardware or software;

upon the Delegate giving to the Contractor not less than 30 days notice in writing, or such longer notice as is specified in the Official Order.

148.2 The Charges payable by the Customer shall be adjusted to reflect the variations in the number of items added, withdrawn or substituted but any item added or substituted shall, if it is found to be faulty upon such addition or substitution, be repaired at the cost of the Customer.

149. Review Procedures

149.1 The Management Committee established under subclause 51.6 shall, in addition to the matters specified in paragraph 51 (a) carry out the following functions:-

(a) arrange for an annual review of Facilities Management Services on a date specified in the Official Order, which will include a review of the Customer’s future planning, budgeting and variations in service coverage, standard and charges;(b) ensure that the review is conducted by representatives of the Contractor and the Customer drawn from operational, financial and support staff areas;

(c) arrange for a performance review to be held quarterly at which the Contractor provides reports of system usage levels and performance against the applicable levels of service required under the Contract;

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(d) ensure that the performance review is conducted by representatives of the Contractor and Customer comprising key managers and representatives or relevant service and operational staff; and

(e) arrange, as requested by either Party, operational reviews to review operating procedures, advise of changes to operating arrangements and exchange technical or other operational information.

149.2 The Contractor or Customer may initiate additional reviews by written notice to the other Party from time to time.

149.3 Where additional reviews are notified they will be conducted as follows:

(a) service and performance review - within 20 working days of notification;

(b) operational review - within 10 working days of notification;

or such other date as is agreed between the Parties.

150. Service Performance Factors

150.1 The performance of the Contractor’s obligations under the Contract will be assessed against the Service Performance Factors.

150.2 In complying with the Service Performance Factors, the Contractor shall, in consultation with the Customer, make recommendations to:

(a) replace faulty or obsolete products;

(b) implement mandatory engineering changes to hardware or upgrades to software; or

(c) instigate changes deemed necessary to meet the Service Performance Factors.

150.3 The Contractor shall not be bound to comply with the Service Performance Factors where the Customer has refused to implement the reasonable recommendations of the Contractor made under subclause 150.2.

151. Management of Support Services

151.1 The Contractor shall make all necessary arrangements to provide the Facilities Management Services including, where the Customer operates maintenance and support contracts between the Customer and a service provider as detailed in Schedule 16, the management of those contracts. The Customer shall disclose all necessary details of the relevant maintenance and support contracts to the Contractor to enable it to perform its obligations under this clause.

151.2 The Customer may not vary or terminate any maintenance and support contracts referred to in subclause 151.1 without the prior approval of the Contractor, which approval may be withheld until the Parties have agreed upon a variation of charges for the Facilities Management Services, as a consequence of the proposed variation or termination.

152. System Availability under Facilities Management Services

152.1 The Contractor shall provide reasonable prior notice to the Customer of planned maintenance times.

152.2 The Contractor shall conduct planned maintenance outside Prime Time and shall provide any special maintenance arrangements requested by the Customer and set out in Schedule 16.

153. System Downtime

153.1 As part of the Facilities Management Services, the Contractor shall provide to the Customer System Availability as specified in Schedule 16.

153.2 In calculating System Availability for the purposes of the Contract, System Downtime excludes any period during which the MSC is not available for the Customer’s productive use because of services being provided under a maintenance or support contract operated by the Customer as referred to in subclause 151.1

153.3 Notwithstanding clause 152, the Contractor may schedule Preventive Maintenance in accordance with the following table and set out in Schedule 16 (unless the Parties otherwise agree) where major upgrades of hardware or software are required or in cases where early symptoms of potentially major problems are detected and urgent Preventive Maintenance action is required to limit the problem impact. Such Downtime is excluded from System Downtime where notice of Preventive Maintenance as specified in the following table is served upon the Customer and the Customer consents to the Preventive Maintenance being performed accordingly.

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TYPE OF

PREVENTATIVE

MAINTENANCE

ANTICIPATED

DOWNTIME

ADVANCE

NOTICE

Planned (eg upgrades of hardware or software)

As estimated 2 weeks

Urgent Up to 1/2 hour 4 hours

Urgent 1/2 hours to 4 hours 1 working day

Urgent Over 4 hours 3 working days

154. Customer Responsibilities

The Customer shall ensure that:

(a) it undertakes its responsibilities as specified in Schedule 1;

(b) the relevant user and support staff receive sufficient training to enable interaction with the Contractor in performing allocated functions included in the Facilities Management Services; and

(c) it keeps the Contractor informed of plans for major or complex changes, to allow effective planning and scheduling of resources by the Contractor.

155. Rebates and Reimbursements

155.1 Where the Contractor fails to meet the Service Performance Factors, the Customer shall be entitled to a rebate on the Charges specified under the Contract.

155.2 Where the Customer has deferred or failed to act on the Contractor’s recommendations for changes or upgrades, no rebate is to apply to the extent that the failure to meet the Service Performance Factors has arisen because of the Customers failure to act upon the recommendation.

155.3 Where the Contractor is required to incur additional costs as a result of the Customers failure to meet its responsibilities under clause 154, the Contractor may charge the Customer additional costs in accordance with this clause. The charge shall be reduced proportionally to the extent of the Contractors failure to meet its obligations under the Contract, provided that such failure is not caused, or contributed to, by an act or omission of the Customer. The additional charges shall be calculated in consultation with the Customer.

156. Problem Escalation Procedure

156.1 Problem escalation procedures may be applied to circumvent or resolve a problem which is significantly affecting the Customer where no action is taken by the Contractor to remedy the problem or the action taken by the Contractor is ineffectual.

156.2 Service-specific escalation procedures shall be set out in Schedule 16.

156.3 The Customer shall initially report any problems through the Contractor’s Help Desk Service or as otherwise agreed between the Parties.

156.4 Four levels of escalation as detailed in the table below shall be made available to the Customer and set out in Schedule 16 (unless the Parties otherwise agree).

CONTRACTOR CLIENT

Level 1 Help Desk (Specify title or role)

Level 2 (Specify title or role) (Specify title or role)



156.5 The escalation procedure shall commence at level 1 and move through to level 4. The timing between escalation levels is at the sole discretion of the Customer. The Customer shall inform the Contractor’s personnel reviewing the fault of their intention to escalate to the next level.

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Government Information Technology Conditions Version 2PART FOURTEEN - Access Services Module

PART FOURTEEN

Access Services Module


PART FOURTEEN - ACCESS SERVICES MODULE

157. Provision of Access Services

157.1 The Contractor shall provide the Access Services in accordance with the Contract and as specified in the Official Order.

157.2 The Contractor shall provide the Access Services at all times and in the manner required in the Official Order and in the Project, Implementation and Payment Plan and shall supply the Deliverables as set out in Schedule 6 to the Customer for the Price, Licence Fee or Charge set out in Schedule 6 and in accordance with the Contract.

157.3 The Contractor warrants that it has the right and authority to provide the Access Services.

157.4 The Contractor grants and will ensure that relevant third parties grant at no additional cost a non-exclusive, non-transferable licence and right during the term of the Contract to the Customer to access and use the Access Services and all Contract Material.


IN WITNESS WHEREOF the Parties to this Deed of Agreement have executed the Deed as at the date first written.

EXECUTION BY GOVERNMENT PARTY

SIGNED, SEALED AND DELIVERED ))

for and on behalf of The Crown In Right Of )The State of Tasmania )

) ..................................................................................................by Andrew Finch ) (signature of Government Party representative)

)))

in the presence of .............................................................. ) ...................................................................................................) (signature of witness)))

EXECUTION BY CONTRACTOR:

THE COMMON SEAL of)))

ACN: )) (Corporate Seal))

was duly affixed hereto at ................................................................. )[insert name of City/Town/Territory] )

)in the State of ....................................................................................... )[insert name of State or Territory] )

)by ...................................................................................................... ) ..................................................................................................(insert name of Director) ) (signature of Director)

)in the presence of ....................................................................... ) ..................................................................................................[insert name of Secretary or other permanent officer] ) (signature of Secretary or other permanent officer).

)

or

SIGNED SEALED AND DELIVERED )for and on behalf of [full name of contractor] )

)by …………………………………………….. ) ………………………………………………………………………..[insert name of director] ) Signature of Director

)and by ……………………………………….. )[insert name of director or secretary) )

………………………………………………………………………..Signature of director/secretary

SCHEDULES

Page 82

SCHEDULE 1

AGREEMENT DETAILS1. Contract Authority (Clause 1)

1.1 Procurement and Property Branch of the Department of Treasury and & Finance

2. Contractor (Clause 1)

2.1

3. GITC Agreement Number (Clause 1)

3.1

4. Term of Agreement (Clause 2)

(a)

(b)

5. Minimum Insurance Requirements (Clause 16)

16.1 Other insurance will be as specified in the Official Order and accepted by the Contractor

16.2 As specified in the Official Order and accepted by the Contractor

6. Restrictions on dealings with certain Agencies (Clause 17)

No restrictions will apply

7. List of Approved Agents (Clause 18)

18.1: List name and other particulars of approved agents:

Not applicable unless specified in Official Order

8. Confidentiality and Disclosure of Information (Clause 19)


9. Credit Card Facility (Clause 20)


10. Quality Compliance (Clause 29)

Not Applicable Tasmania

11. Performance Guarantee (Contract Authority) (Clause 30)

Not required unless specified in the Official Order and accepted by the Contractor

12. Unconditional Financial Undertaking (Contract Authority) (Clause 31)

Not required unless specified in the Official Order and accepted by the Contractor

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13. Limitation of Liability (Clause 32)

(a) 32.1: Specify here if clause 32 is to apply:

Clause 32 does not apply.

14. Applicable Law (Clause 33)

insert the name of the Australian State or Territory whose law is to be applicable to the Agreement:

Tasmania

15. Notices (Contract Authority) (Clause 38)

(a) 38.1: Address of Contractor:

(b) 38.2: Address of Contract Authority:

(c) Details of Position of Representative of Contractor:

16. Cost Recovery Fee (Clause 39)

Not applicable unless specified in the Official Order

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SCHEDULE 2

PRODUCT AND SERVICE DETAILSAll the required product and service details indicated below are as specified in any tender response (or variation thereto) or offer submitted by theContractor and accepted by the Contract Authority, or if not specified, as provided in the Official Order.

Required Product & Service Details

[Set out Product & Service details including all the following]

[Set out here price, licence fee and charge details, and any other relevant information, in respect of the Product and Service, or specifically incorporate these details by describing where that information is to be kept (eg in a dated price list; on an identified disk, etc]

[Set out Fraction of Base Cost subject to variation (see definition of IC) if any]

Set out Fraction of Base Cost subject to CPI variation.

Set out Fraction of Base Cost subject to exchange rate variation (if any).

Indicate which Products or Services complies with ANZ GOSIP (refer subclause 3.5)

Set out extended Warranty Period for Products.

Discounts:

The Contractor may in addition offer the following types of discounts on a Base Cost:

(a) a Government Discount - the standard discount offered by the Contract in respect of the supply of Product and Service;

(b) a discount for pre-payment;

(c) a discount for early payment;

(d) a corporate card discount;

(e) a Single Order Volume Discount - a discount based on the quantity of Products comprised in a particular order placed by a

particular Customer;

(f) a Public Sector Volume Discount - a discount based on the total value (in dollars) of Products purchased by, or licensed to, all Customers from the Contractor during the Term of this Agreement;

(g) a Supplier Status Discount - a discount based on the special status afforded to a Contractor by a Customer (for example a “preferred supplier” or a “sole supplier”);

(h) an Educational Institution Discount - the discount afforded to all Educational Institutions in relation to a Product or Services (an

Educational Institution means a body which provides educational and research services to the public for which government funding is received);

(I) a Maintenance Customer Discount - a discount based on the total value (in dollars) of Hardware Maintenance Services Performed by the contractor for a particular Customer;

(j) a Maintenance Site Discount - a discount based on the total value (in dollars) of Hardware Maintenance Services performed for a Customer at a particular site;

(k) a Support Service Charge discount;

(l) a time based special discount which may be offered by the Contractor (eg. “Christmas specials Discount”); or

(m) any other discount described in this Schedule 2.

Classes of Licences

The Contractor may offer the following classes of licences:

(a) Single User Licence - where a single unit of the Licensed Software is licensed to a Customer - a licence for a single user to use the Licensed Software on any processor at any site; and where more than one unit of the Licensed Software is licensed to

4851-17 | 3018032 | December 2018Page 85

a Customer under this type of licence simultaneously - licences for a specified number of users to use the Licensed Software on a specified number of processors at any site;

(b) CPU Licence - a licence granted to a Customer to use the Licensed Software on a single processor of a specified capacity regardless of the number of terminals accessing that processor or the number of concurrent active users;

(c) CPU Licence (Restricted) - a licence granted to a Customer to use the Licensed Software on a single processor of a specified capacity, for a specified number of terminals which access that processor, or for a specified number of concurrent active users, as the case may be;

(d) Local Area Network (LAN) Licence - a licence granted to a Customer for a specified maximum number of concurrent active users to use the Licensed Software on a network regardless of the number of terminals on that network;

(e) Site Licence - a licence granted to a Customer for a specified maximum number of concurrent active users to use the Licensed Software at a specified site regardless of a number of processors at that site or the number of terminals accessing those processors;

(f) Corporate Licence - a licence granted to a Customer for a specified maximum number of concurrent active users to use the Licensed Software at any site regardless of the number of processors or the number of terminals accessing those processors, at those sites;

(g) Public Sector Licence - a licence granted jointly to a number of Customers for specified number of concurrent active users to use the Licensed Software at any site regardless of the number of processors, or the number of terminals accessing those processors, at those sites;

(h) Educational Institution Licence - a licence which is granted to an Educational Institution for educational or research purposes but not for purposes associated with the administration of the Educational Institution;

(i) University Consortium Licence - a licence granted under special conditions to Universities;

or any other class of licence offered by the Contractor and agreed to by the Contract Authority.

Delivery Lead Times

Delivery lead times if any - Where a Contractor is able to specify delivery lead times in respect of a Product or Service (or various quantities of that Product or levels of that Service) and the Contractor has agreed to supply under this Agreement, those details shall be specified.

Conversion of Licence Plan

The Contractors Conversion of Licence Plan as referred to in paragraph 111.1(e), being the conversion of licence plan in respect of any of the Contractor's software Products.

Response Priority

The following table may be used to establish response by the Contractor to telephone calls for remedial maintenance during the Basic Maintenance Period.

SUPPORTLEVEL

BUSINESSCRITICAL

BUSINESSCRITICAL

NON-BUSINESSCRITICAL

NON-BUSINESSCRITICAL

STANDARDREQUESTFORSERVICES

FATAL IMPAIRED FATAL IMPAIRED

HIGH A B B C E

MEDIUM A B C C E

LOW B or C C or D C or D D F

FATAL = Total system inoperable.IMPAIRED = Partial system inoperable.BUSINESS CRITICAL = Unable to perform core business functions.NON-BUSINESS CRITICAL = Able to perform limited core business functions.

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Priority Level Response Times:-

PRIORITY LEVEL RESPONSE TIME

A 30 MINUTES

B 60 MINUTES

C 4 HOURS

D 12 HOURS

E 24 HOURS

F 48 HOURS

The response time is the maximum period which may elapse before the Contractor has commenced to remedy the fault, whether by remote or onsite diagnosis.

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SCHEDULE 3

INFORMATION TO BE CONSIDERED WHEN PREPARING AN OFFICIAL ORDER

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OFFICIAL ORDERDETAIL

"REF" MODULES COMMENTS

Part 4

Part 5

Part 6

Part 7

Part 8

Part 9

Part 10

Part 11

Part12

Part13

1. Agreement Number 1.1 Insert number of Contractor's GITC Agreement.2. Customer 1.1 Specify the Department or Agency placing this Official Order.3. Delegate 1.1 Nominate the person (or office) to act as Delegate.4. Ordering Officer 1.1 Specify the Officer authorised to place the Official Order (eg. Name and Position of Current

occupant).5. Contractor 1.1

1.1

(a) Specify the name and ACN (if applicable) of the Contractor;

(b) Specify address, telephone and facsimile details of the Contractor.6. Product being Ordered

(Hardware)1.1

4.1

4.1

86.2

(a) List the Hardware to be acquired;

(b) List the applicable prices, discounts and Government taxes;

(c) If base cost of the Product is not specified in Schedule 2, set out the price, including relevant details (refer subclause 3.8);

(d) Specify if Customer will accept second hand hardware, otherwise each hardware product must be new.

7. Warranty Period 1.1 Specify warranty period if longer than 90 days is required.8. Contractor's Specifications 1.1 Describe or attach Contractor's Specifications.9. Customer's Functional

Specifications10 Describe or attach Customer's Functional Specifications.

10. Site 1.1 Specify where the Product is to be installed.11. Site Specification and Site

Preparation 61.1

61.4

(a) Specify if the Contractor is NOT required to prepare a Site Specification (otherwise the Contractor must prepare a Site Specification prior to the preparation of the Site);

(b) Specify if the Contractor is responsible for undertaking Site preparation (otherwise the Customer is responsible for Site preparation).

12. Delivery and Installation 41.1

41.1

(a) Specify Delivery Services to be provided by the Contractor;

(b) Specify Installation Services to be provided by the Contractor.13. System 1.1 Specify the operational system intended to meet the Customer's needs of which the Product

will form a part.14. Configuration 1.1 Describe for each installation site the items of operationally related Hardware and Software.15. Minimum System

Configuration (MSC)1.1 Specify the configuration which meets the Customer's minimum processing needs.

16. Access Date 1.1 Specify the date from which the Contractor is to be given access to the site.17. Diary 51.13 Specify if subclauses 51.14 to 51.16 are to apply.

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18. Acceptance Testing 55.1

55.155.1355.15

55.16

55.17

55.27

55.30

(a) Specify if Acceptance Testing is required;

(b) If Acceptance Testing is required:

i) Specify the charges, if anyii) Specify the commencement date for Acceptance Testsiii) If agreed, specify the number of hours on each normal working day for the

running of the Acceptance Testsiv) If agreed, state the periods for the continuance of Functional Tests and

Operational Testsv) Specify if the Customer is to carry out Acceptance Tests (otherwise the

Contractor must do so)vi) Specify the level of availability of the Minimum System Configuration (MSC)

required to be achieved during the Operational Tests. (NB:- specify only if the required level is greater than 98%)

vii) Specify any elements of the site or operational environment which must be provided by the Contractor (otherwise all such elements are to be provided by the Customer).

19. Payment (Product) 42.1 Specify if payment is due other than at midnight on the Actual Acceptance Date (AAD).(NB:- Not required if a Project, Implementation and Payment Plan exists)

20. Project, Implementation and Payment Plan

1.1 Annex the Project, Implementation and Payment Plan (if any).

21. Terms of Payment 42.3 If other than 30 days, insert the number of days for payment after receipt of the Invoice (eg. 21 days).

22. Officer to Receive Invoice 42.4(e) Specify the officer to whom the Invoice is to be addressed.23. Prices to be Fixed for Set

Period44.1 Specify if Customer requires the price to be fixed for a period exceeding 90 days.

24. Future Payment 45.2 Specify if future payments are to be varied otherwise than in accordance with clause 7.25. Travel Expenses 46. Specify the places that are remote locations for the purposes of payment of reasonable travel

expenses.26. Credit Card Facility 20 Specify if the Customer may pay by way of Credit Card.27. Unconditional Financial

Undertaking47.1

47.147.1

(a) Specify if an Unconditional Financial Undertaking is NOT required;

(b) Where an Unconditional Financial Undertaking is required:

i) Specify the date by which requiredii) Specify the maximum aggregate sum required.

28. Performance Guarantee 48.1 Specify if a Performance Guarantee is NOT required.


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29. Insurance Requirements 49.1

49.149.1

(a) Specify if any additional insurance (including type of insurance) is required by the Contractor;

(b) If additional insurance is required by the Contractor:

i) Specify the termii) Specify the amount of insurance.

30. Joint Insurance 49.2 Specify if joint insurance is required.31. Escrow of Source Code 50.1 Specify if Escrow of Source Code is NOT required.32. Confidential Information 19.5

19.5

(a) Specify if limited disclosure of information about the Contract is permitted by the Contractor;

(b) Set out the conditions of disclosure.33. Secrecy and Security 74. Insert secrecy and security requirements of the Customer.34. Documentation 64.1

64.2

(a) Specify any additional publications or aids to be made available by the Contractor free of charge;

(b) Specify the number of additional copies of documentation being purchased by the Customer.

35. Training 65. Specify the training, if any, being purchased by the Customer.36. Liquidated Damages 69.1

69.1

(a) Specify the obligations and target dates where failure to achieve gives rise to Liquidated Damages;

(b) Specify the Liquidated Damages amount for each day of delay (maximum 180 days).37. Contractor Management

Services51.4 Specify the extent to which the Contractor is to provide Contractor Management Services

(refer definition).38. Management Committee 51.5

51.7

(a) Specify if subclauses 51.6 to 51.11 are to apply;

(b) If subclauses 51.6 to 51.11 are to apply, specify the persons on the Management Committee.

39. Customer Supplied Items (CSI)

54.1

54.2

54.11

(a) Specify any CSI to be supplied to the Contractor;

(b) Set out specification of CSI;

(c) Specify any costs to be borne by the Contractor.40. Staged Implementation and

Termination77.1 Specify if subclauses 77.2 and 77.3 apply (ie. If the Customer wishes to retain a right of

termination after each stage of project but subject to payment of compensation to the Contractor).


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41. Notices 83.1

83.1

(a) Set out address, telephone and facsimile details of Customer, Delegate or Representative for receipt of Notices;

(b) Set out address, telephone and facsimile details of Contractor for receipt of Notices.42. Additional Conditions 84 Set out any Additional Conditions to the Contract.43. Hardware (Maintenance) 1.1 List the Hardware to be maintained

(eg:- Item No., Description, Serial No., Quantity).44. Services (Hardware

Maintenance)1.1 Specify the Services to be acquired in respect of the Hardware to be maintained,

(eg:- • Comprehensive Maintenance Service;• Time and Materials Maintenance Services;• Pick Up and Delivery Maintenance Service;• Return to Depot Maintenance Service;• Sway In Swap Out Maintenance Service).

45. Charges 94.3 Specify the Hardware Maintenance Charges, (eg:- • Monthly Charge per Item;

• Total Monthly Charge;• Time and Materials Charge; or• Other Charges as Applicable).

46. Warranty Period (Hardware Maintenance)

1.1 List the items of Hardware still under warranty and the expired period of warranty.

47. Site 1.1 Specify the site where the service is to be provided.48. Maintenance Service Period 1.1 Refer to "Basic Maintenance Period".49. Period of Hardware

Maintenance Service89.1

89.1

89.2

(a) Specify the period for which Hardware Maintenance Service is to be provided at the site;

(b) Specify the commencement date for the Hardware Maintenance Service;

(c) Detail the Hardware Maintenance Service being acquired by reference to Schedule 2, (eg: × Time and Material Maintenance Service;

× Swap In Swap Out Maintenance Service;× Return to Depot Maintenance Service;× Pick-up and Delivery Maintenance Service).

50. Standard of Maintenance Services for Provision of Comprehensive Maintenance Service

90.2

90.2

(a) Hardware Availability - Specify if higher than 98% Hardware availability is required;

(b) System Availability - Specify if higher than 99% System availability is required.

51. Preventive Maintenance 91.1

1.1

Set out or identify the Preventive Maintenance Schedule.

List the times which Hardware and Systems Software are available for the performance of Preventive Maintenance.


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52. Remedial Maintenance 92.1

92.2

92.3

(a) Specify type of Remedial Maintenance Service;

(b) Set out the rate at which the Contractor charges Remedial Maintenance performed for more than one (1) hour following the Basic Maintenance Period;

(c) Set down the maximum time for restoration of an item of Hardware receiving Remedial Maintenance.

53. Response Time 92.4 Specify the Response Time for any attendance.54. Fault Escalation Procedure 92.5 Set out Fault Escalation Procedure to be applied by the Contractor when agreed response

times have NOT been achieved. 55. Basic Maintenance Period 95.2

95.2

(a) Specify if the Basic Maintenance Period is other than eight (8) hours between 0700 hours and 1800 hours;

(b) Specify the Basic Maintenance Period agreed upon.56. Hardware Downtime 96.4 Specify if reloading Applications Software is included in Hardware Downtime.57. System Downtime 96.4 Specify if reloading Applications Software is included in System Downtime.58. Movement of Hardware 102.1 Specify the period of notice to be given by the Customer to the Contractor when the Customer

intends to relocate any Hardware being maintained.(NB:- If not specified otherwise, the period of notice is 30 days).

59. Variation of Hardware 104.1 Specify the period of notice to be given by the Customer to the Contractor when the Customer intends to relocate any Hardware being maintained.

(NB:- If not specified otherwise, the period of notice is 30 days).60. Payment (Service) 42.2 Set out the date on which payment is due.

(NB:- Not required if a Project, Implementation and Payment Plan exists).61. Licensed Software 1.1

4.1

4.1

(a) List the Licensed Software to be acquired;

(b) List the applicable license fees and charges and Government Taxes;

(c) If base cost is not specified in Schedule 2, set out the licence fee including relevant details (see subclause 3.8).

62. Warranty Period (Licensed Software)

1.1 Specify warranty period where longer than 90 days.

63. Class of Licence 105.2

105.2

105.3

(a) Describe the Software being acquired by reference to Schedule 2;

(b) Describe the Class of Licence being acquired by reference to Schedule 2;

(c) Nominate the number of copies permitted to be made.64. Period of Licence 106

106

(a) Commencement date;

(b) Period for which Licence remains in force.


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65. Supply 107.1

107.1

107.1

41.1

(a) Nominate the number of copies being supplied;

(b) Nominate the medium on which each copy is to be supplied;

(c) Specify if multiple copies are to be regarded as the subject of a single licence (otherwise each copy is taken to be subject of a separate licence);

(d) Specify the extent of the delivery, installation or implementation services to be provided.66. Location 1.1 Specify where each item of Licensed Software is to be operated;67. Designated Operating

Environment1.1 Specify the hardware and software environment in which the Licensed Software (or

Developed Software) is designed to be used.68. Consultancy Service 1.1

114.2

114.2

114.1

114.1

114.1

4.1

(a) Describe the service to be provided by the Contractor;

(b) Set out times for performance of the service;

(c) Describe the manner of the service (eg:- • format of report

• how service is to be undertaken

(d) Details of the methodology to be used (if any);

(e) Describe the standard of service (if applicable);

(f) Annex the Project, Implementation and Payment Plan (if any);

(g) Detail Charges, etc. for the Consultancy Service (refer to the Project, Implementation and Payment Plan, if any).

69. Specified Personnel 1.1

114.3

(a) Nominate the key personnel (if any) who are to be dedicated to the Consultancy Service;

(b) Set out any exemptions, (eg:- John Doe - 5 hours per day).

70. Acceptance Criteria 1.1 Specify the criteria to be applied by the Delegate in determining whether to accept the Consultancy Service

(eg:- Service complies with Contract Specifications).71. Time Frames 114.2

114.2

(a) Specify the time frames for the provision of the Consultancy Service;

(b) Specify the manner of performance of the Consultancy Service.


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72. Provision of Deliverables 115.2

115.1

(a) Specify the deliverables to be provided by the Contractor (Annex Schedule 14 to the Official Order);

(b) Specify the Development Tools to be used (eg:- "refer to tender response").

73. Methodology for Software Development Procedure

120.1 Identify the required methodology.

74 Source Code 123.1

123.1

The Following Source Codes are NOT required to be delivered up to the Customer.

Specify if Source Codes for software tools, etc. is to be delivered up to the Customer.75. Provision of Software Support

Service124

124

(a) Specify the nature of the Support Service and the Software to be supported;

(b) Specify the period for the provision of the Software Support Service (eg:- "12 months").

76. Updates and New Releases 126.1

126.2

(a) Specify if the Customer does NOT require notification of the availability and specification of Updates or New Releases;

(b) Specify the charge, if any, for demonstration of the function and performance of Updates or New Releases.

77. Supported Software 1.1 Specify the Licensed Software to be supported.78. Service (Systems Integration) 1.1 Specify the System Integration Service to be provided

(eg:- Annex the Project, Implementation and Payment Plan).79. Warranty Period (The System) 1.1 Specify warranty period where longer than 90 days.80. Maintenance of Customer

Supplied Items (CSI)133

133

133

(a) Specify if the Contractor is appointed as an agent to manage maintenance obligations in respect of CSI;

(b) List the CSI concerned;

(c) Specify if maintenance is to be provided in accordance with Hardware Maintenance Module Conditions.

81. Contractor Supplied Equipment (CSE)

132 Specify the CSE to be provided by the Contractor (Annex Schedule 8 to the Official Order).

82. Acceptance Testing (The System) - Test Environment

135.14 Specify elements of the Site Environment and the Operational Environment to be provided by the Contractor for the purposes of Acceptance Testing (otherwise all such elements are to be provided by the Customer).

83. Contractor as Agent 131.4 Specify the obligations of the Contractor in respect of Acceptance Testing of Products or Services acquired by the Contractor pursuant to Common Use Contracts.


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84. Provision of Data Migration Services

136.1

136.3

136.3

136.3

(a) Identify the Customers data being converted or migrated;

(b) Specify any variations to the Services provided in subclause 136.3;

(c) Specify the format into which the Customer's data is to be converted;

(d) Specify any additional functions to be performed by the Contractor.85. Source Code of Data Migration

Software136.5

136.5

The following Data Migration Software Source Codes are not required to be delivered up to the Customer.

Specify if Source Codes for software tools, etc. is to be delivered up to the Customer.86. Limitation of Liability 68.3 GITC "Capping" Clause Option:

(a) Nominate if GITC "Capping" Clause applies;

(b) Insert number of millions of dollars that damages are to be capped at;

(c) Insert multiple (eg. 3, 5, 10) of the value of the Contract that damages are to be capped at.

87. Class of Licence 137.6137.6137.6137.6

(a) Describe the Software being acquired by reference to Schedule 2;(b) Describe the Class of Licence being acquired by reference to Schedule 2;(c) Nominate the number of copies permitted to be made;(d) Storage media required;(e) Documentation required.

88. Period of Licence 138. (a) Commencement date.89 Delivery, Installation,

Implementation139.2 Specify delivery, installation and implementation requirements of the Customer.

90. Packaged Software Details 140.6 Specify any particular requirements relating to the filling of the Official Order.91. Provision of Facilities

Management Services145.1

145.2

(a) Specify the Facilities Management Service to be acquired;e.g . Computer Facilities Management. Office Systems Management. Data Network Systems

(b) Other categories of Facilities Management Service to be delivered to the Customer.92 Level of Services 146. Specify the level of services to be provided.


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93. Service Period 139.1

139.2

(a) List the Service Period required by the Customer for each nominated category of Facilities Management Service: eg

i) normal working days the period between 8:00 am and 5:00 pm subject to extension in one (1) hour periods (prime-time);

ii) any additional period to I); iii) Saturday, Sunday or Public Holiday period;

(b) Level of service to be provided by Contractor during service period. 94. Variation of Configuration 148.1 Specify if longer than 30 days notice require to vary configuration.95. Review Period 148.1 Specify date of annual review.


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SCHEDULE 4

ANNEXURE TO OFFICIAL ORDER

PROJECT, IMPLEMENTATION AND PAYMENT PLAN

A. PROJECT PLANTo be agreed between the Customer and the Contractor in individual cases.

Introduction

This Annexure must document a complete description of the obligations accepted and work to be performed in performing the Contract. This Annexure sets out the nature of the work that the Contractor is to perform and so is a most important part of the Contract. Its terms must be precise and specific and cover all actions that are required of the Contractor.

The title of any Service and a detailed statement of work to be undertaken should be included. This may be achieved by annexing or, where this is not practicable, by incorporating by reference (with adequate and precise description) correspondence between the Parties including any proposal from the Contractor.

Contract Materials

The nature and extent of the Contract Materials that are required to be produced and delivered by the Contractor must be specified in detail, e.g., a report, interim reports, plans, models, specifications, other deliverables etc. including provisions about the form (e.g. hard copy, data storage system, sound or visual images etc.. in which the Materials are to be produced and any equipment necessary for access to the Materials.

Specific mention must be made of matters under subclauses 56.5, 56.7 and 56.8 where the Parties have reached a satisfactory agreement on the relevant information.

Part A

Specify Contract Material assigned to Contractor and mention any agreement that has been reached as per clause 56.5.

Part B

Specify Contract Material to be co-owned and the agreement that has been reached as per clause 56.7.

Part C

Specify Contract Material licensed to Contractor by Customer and mention the agreement that has been reached as per clause 56.8.

Other Aspects of Project Plan

Project plan should address the relevant aspects of the Contract including if appropriate the following:-

1. Identify and describe accurately all related project tasks.

2. Commencement dates for all tasks.

3. Completion dates for all tasks.

4. Identify all project deliverables and due dates for delivery.

5. Names of and details of the roles, responsibility, authority and skills of each of the contractor's personnel and, if applicable sub-contractors and their personnel and details of arrangements to replace personnel if necessary.

6. Detail the tasks to be performed by the Customer's employees.

7. Detail the initial system set-up and support for data conversion.

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8. Details of site preparation.

9. Details of prototyping.

10. Details of how, and what phases the integration of the Products, Licensed Software and Developed Software is to be achieved (for systems integration).

11. For each task to be performed or milestone to be achieved and various responsibilities of the contractor and the Customer shall be specified.

12. The Contractor must specify any work which can be performed off-site.

13. Details of the organisational and human resource management of the project team shall be set out and include:

(a) hierarchy of personnel (both Customer and contractor personnel);

(b) responsibilities;

(c) resumes of the Contractor's staff assigned to perform tasks under this Contract.

14. Specify the times and places for the supply of Products or Services which are to be provided by the Customer.

15. Specify intervals at which the Contractor is required to provide written progress reports to the Delegate in accordance with paragraph 51.4(b)

16. Specify the project methodology to be undertaken.

17. Details of training.

18. Specify the date by which the Contractor is to prepare a Developed Software Detailed Design Specification (subclause 119.1).

19. Specify the date by for provision of the Acceptance Test Data by the Customer to the Contractor.

20. Specify the times at which interim copies of the source code are to be delivered (subclause 123.2).

21. Specify the date the Customer's Data for Migration is to be delivered (subclause 136.2).

22. Specify the dates for the supply of Data Migration Services (subclause 136.3).

23. Interpretation (subclause 1.1 - definition of "Contract Acceptance Date") [insert date Contractor is required to complete Acceptance Tests].

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B. IMPLEMENTATION PLAN

The time-frame for any Services, including delivery of Contract Materials, should be set out specifying all relevant dates: commencement, progress or interim stages, completion. If progressive delivery of Contract Materials is required a precise timetable must be specified. The following aspects should be considered in developing the Plan:-

Item StageOne

StageTwo

StageThree

StageFour

FinalStage

Commencement Date

Acceptance Testing Date

AmountPayable

Amount tobe w/held

Due DatePart Payment

Due DateFull Payment

Liquidated Damages

CompletionDate

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C. PAYMENT PLANDetails of payment to be made by the Customer to the Contractor. This obligation should be linked, as appropriate, to instalment payments against progressive delivery of the work under the Contract, acceptance by the Delegate of the work as meeting the requirements of the Contract, observance of specified invoicing procedures. For example, in the delivery of Consultancy Services the following arrangements could be considered:

¥ Payment shall be made at the rate of $..... per day for a period of ... weeks payable fortnightly in advance or payable fortnightly in arrears or payable fortnightly within 15 days of receipt of a correctly rendered invoice to the Customer;

OR

¥ The payment by the Customer for the work is $........ payable, subject to Acceptance;

OR

¥ The total payment for the work is $......... payable by the following instalments:

- $........ upon delivery of an interim report (as described in the Project, Implementation and Payment Plan);

- $........ upon delivery of a Final Report.

Allowances

¥ Details of other financial obligations, eg. travelling allowances, printing or production costs.

- The Customer shall provide the following facilities free of charge to the Contractor for the performance of the Contract -

(a) accommodation at Customer premises for up to ... personnel of the Contractor;

(b) such normal office services and facilities as are reasonably required by the Contractor's personnel for the performance of the Contract; and

(c) all magnetic media and consumables, storage facilities and messenger services reasonably required by the Contractor.

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SCHEDULE 5

(Subclause 54.1)


LIST OF CUSTOMER SUPPLIED ITEMS (CSI)To be agreed between the Customer and the Contractor in individual cases.

Item Costs(if any)

Costs(if any)

Specification(if Any)

Hardware

Software

Processing Capacity

Office Space

Office Support

Furniture and fittings

Site Access Times

Networking

Telecommunications

Transport

Customer Personnel

Customer Personnel

Customer Specialist Support

Secretarial Support

Charge out for Customer's personnel required to work outside normal hours at Contractor's request

Equipment location

Documentation

etc

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SCHEDULE 6

(Subclause 114.2)(Subclause 115.2)


LIST OF DELIVERABLES[insert details of deliverables]

To be agreed between the Customer and the Contractor in individual cases.

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SCHEDULE 7

(Subclause 131.1)ANNEXURE TO OFFICIAL ORDER

LIST OF CUSTOMER SUPPLIED ITEMS TO BE ACQUIRED BY CONTRACTOR AS AGENT

[insert terms and conditions of acquisition]


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SCHEDULE 8

(Clause 132)ANNEXURE TO OFFICIAL ORDER

LIST OF CONTRACTOR SUPPLIED EQUIPMENT AND PRICES(CSE)


Systems Integration

- List of Services and Charges

Hardware Acquisition

- List of Hardware, Documentation and Prices

Hardware Maintenance Service during Contract Period

- list Preventive and Remedial Maintenance services and applicable Hardware Maintenance Charges

- list the items to be maintained and the date from which each item is to be maintained

- state when Hardware Maintenance Charges will be due (where a Comprehensive Maintenance Service is to be provided, for the purposes of subclause 96.1 the Hardware Maintenance Charge should be stated to be due at the completion of the monthly Accounting Period)

- where Remedial Maintenance is to be provided, specify the period that the response time must not exceed and, where appropriate, state charges for Remedial Maintenance performed outside the Basic Maintenance Period

- where Preventive Maintenance is to be provided, set out the Preventive Maintenance Schedule (including times during which Preventive Maintenance is to be performed)

- where a Comprehensive Maintenance Service is to be provided, specify the Basic Maintenance Period for the relevant items of Hardware and MSC and the date from which clauses 95, 96 and 97 shall apply for particular Hardware and Minimum Systems Configuration

- List any CSI to be maintained

Licenced Software

- List of Licensed Software, Documentation and Licence Fees

Licensed Class of Licence Discount % DeliverySoftware Licence Fee Applicable ApplicableItem Date

Period Warranty Escrow Designatedof Licence Period Details Processor

- specify the cost, if any, of any New Release of the Licensed Software;

- specify if the Contractor provides a delivery and installation service, and if so, specify the charges (if any) for delivery and installation of New Releases and Updates.

Software Services and Support Services for Licensed Software

Licensed Software Support Discount %

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Software Services Services

Support Software Fraction of PaymentServices Services Charges Subject DueCharges Charges to variation

Software Services and Support Services for Developed Software other than Licensed Software

- list services and charges

- list documentation and licence fees

- list any designated processor

Training

- specify training the Contractor is to provide and charges

Delivery and Installation

- specify whether the Contractor or the Customer is to install Products

- specify:

(a) date on which installation is to be carried out

(b) manner in which installation is to be carried out

(c) costs (if any) of installation)

- specify if Customer requires Contractor to demonstrate use of Hardware or Licensed Software

Data Migration Services

- List of charges

Additional CSE

- List of items and prices (e.g. volume discounts)

Specified Personnel

- Nominate the key personnel (if any) who are to be dedicated to this project- Set out any exceptions

eg: John Doe 5 hours per day

Contract Price = $

state the total amount payable by the Customer to the Contractor for CSE supplied by the Contractor up to the AAD of the System.

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SCHEDULE 9

(Clause 135)ANNEXURE TO OFFICIAL ORDER

ACCEPTANCE TESTS FOR THE SYSTEM


System Testing

× Insert details of Acceptance Tests, and acceptance criteria applicable to those Acceptance Tests, to be performed;

× Insert period during which the Acceptance Tests for the System or part thereof are to be carried out;

× Insert who is to carry out the Acceptance Tests if not the Contractor;

× If Contractor is carrying out the Acceptance Tests for the System, or part thereof, insert the number of days of prior notice that the Contractor is to give to the Customer that it is ready to undertake the Acceptance Tests for the System or part thereof.

Testing and Acceptance of Hardware



× If Contractor is carrying out the Acceptance Tests for the Hardware, insert the number of days of prior notice the Contractor is to give to the Customer that it is ready to undertake the Acceptance Tests for the Hardware;

× Specify number of 8 hour shifts the Customer requires the Acceptance Tests to be run over.

Testing and Acceptance of Licensed Software

× Insert details of Acceptance Tests, and acceptance criteria applicable to those Acceptance Tests, to be performed and insert period during which the Acceptance Tests are to be carried out;


× If Customer is to carry out the Acceptance Tests, specify whether a representative of the Contractor is to be present while the Acceptance Tests are carried out;

× If Contractor is to carry out the Acceptance Tests, insert the number of days of prior notice the Contractor is to give Customer that it is ready to undertake the Acceptance Tests.

Testing and Acceptance of Developed Software


× Insert who is to carry out the Acceptance Tests if not the Contractor and insert period during which the Acceptance Tests are to be carried out.

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SCHEDULE 10

(Subclauses 19.6 and 84C.6)

DEED OF CONFIDENTIALITY

BY THIS DEED DATED THE ............................ day of .............................................................. 199 ......

BETWEEN [Insert name and address for services of Government Party] ("the Customer")

AND [Insert name and address for service of Confidant] ("the Confidant")

Recitals:

A. In the course of the Confidant performing certain Services for the Customer (whether directly or indirectly), the Confidant may become aware of information belonging to or in the possession of the Customer that is confidential.

B. Improper use or disclosure of that information would severely damage the Customer's ability to perform its governmental/statutory functions.

C. The Customer requires, and the Confidant agrees, that it is necessary to take all reasonable steps (including the execution of this Deed) to ensure that the Customer's Confidential Information is kept confidential and that the Confidant performs those services faithfully and without any conflicting interest.

AGREED COVENANTS:

1. RECITALS

The Parties acknowledge the truth and accuracy of the Recitals in every particular.

2. INTERPRETATION

2.1 Definitions

In the interpretation of this Deed unless the contrary intention appears or the context otherwise requires or admits the following expressions shall have the following meanings:

"Confidential Information" means information that:

(a) is by its nature confidential;

(b) is designated by the Customer as confidential; or

(c) the Confidant knows or ought to know is confidential;

and includes:-(d) information comprised in or relating to any Intellectual Property Rights of the Customer;

(e) information relating to the financial position of the Customer and in particular includes information relating to the assets or liabilities of the Customer and any other matter that does or may affect the financial position or reputation of the Customer;

(f) information relating to the internal management and structure of the Customer, or the personnel, policies and strategies of the Customer;

(g) information of the Customer to which the Confidant has access other than information referred to paragraphs (d), (e) and (f) that has any actual or potential commercial value to the Customer or to the person or corporation which supplied that information;

(h) in the case of the Customer, relating to the policies, strategies, practices and procedures of the Government of [Commonwealth/State/Territory] and any information in the Confidant’s possession relating to the [Commonwealth/State/Territory] Public Services; and

(i) information in the Confidant’s possession relating to the Customer’s clients or suppliers, and like information;

"Intellectual Property Rights" includes copyright, trade mark, design, patent, semiconductor or circuit board layout rights, trade, business or company names, confidential or other proprietary rights, or any rights to registration of such rights, whether created before or after the date of this Deed and whether created in Australia or elsewhere;

4851-17 | 3018032 | December 2018Page 108

"notice" means notice in writing given in accordance with this Deed; and

"writing" means any mode of representing or reproducing words, figures, drawings or symbols in a visible form delivered, posted or transmitted electronically.

2.2 General

Unless the contrary intention appears:

(a) monetary references are references to Australia currency;

(b) the clause and subclause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;

(c) a cross reference to a clause number is a reference to all its subclauses;

(d) words in the singular number include the plural and vice versa;

(e) words importing a gender include any other gender;

(f) a reference to a person includes a partnership and a body whether corporate or otherwise;

(g) a reference to a clause or subclause is a reference to a clause or subclause of this Deed; and

(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

3. NON DISCLOSURE

3.1 The Confidant must not disclose the Confidential Information to any person without the prior written consent of the Customer.

3.2 The Customer may grant or withhold its consent in its absolute and unfettered discretion.

3.3 If the Customer grants its consent, it may impose conditions on that consent. In particular, but without limiting the generality of the preceding sentence, the Customer may require that the Confidant procure the execution of a Deed in these terms by the person to whom the Confidant proposes to disclose the Confidential Information.

3.4 If the Customer grants consent subject to conditions, the Confidant must comply with those conditions.

3.5 The obligations of the Confidant under this Deed shall not be taken to have been breached where the Confidential Information is legally required to be disclosed.

4. RESTRICTION ON USE

The Confidant will use the Confidential Information only for the purpose of its dealings with the Customer (whether directly or indirectly).

5. SURVIVAL

This Deed will survive the termination or expiry of the contract providing for the performance of services by the Confidant (whether directly or indirectly).

6. POWERS OF THE CUSTOMER

Production of Documents

6.1 The Customer may demand (without needing to reduce the demand to writing) the delivery up to the Customer of all documents in the possession or control of the Confidant containing the Confidential Information.

6.2 The Confidant must immediately comply with a demand under this clause 6.

6.3 If the Customer makes a demand under this clause 6, and the Confidant has placed or is aware that documents containing the Confidential Information are beyond his or her possession or control, then the Confidant must provide full particulars of the whereabouts of the documents containing the Confidential Information, and the identity of the person in whose custody or control they lie.

6.4 In this clause 6, "documents" includes any form of storage of information, whether visible to the eye or not.

Legal Proceedings

6.5 The Confidant acknowledges that the Customer may take legal proceedings against the Confidant or third parties if there is any actual, threatened or suspected breach of this Deed, including proceedings for an injunction to restrain such breach.

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7. CONFLICT OF INTEREST

7.1 The Confidant warrants that before entering into this Deed it has disclosed to the Customer all the past, current and anticipated interests of the Confidant which may conflict with or restrict the Confidant in performing services to the Customer fairly and independently.

7.2 The Confidant shall not during the course of this Deed engage in any activity or obtain any interest likely to conflict with or restrict the Confidant in providing services to the Customer fairly and independently and shall immediately disclose to the Customer such activity or interest.

8. NO EXCLUSION OF LAW OR EQUITY

This Deed must not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the confidentiality of the Confidential Information.

9. WAIVER

9.1 No waiver by the Customer of one breach of any obligation or provision herein contained or implied shall operate as a waiver of another breach of the same or of any other obligation or provision herein contained or implied.

9.2 None of the provisions hereof shall be taken either at law or in equity to have been varied waived discharged or released by the Customer unless by its express consent in writing.

10. REMEDIES CUMULATIVE

Cumulative

10.1 The rights and remedies provided under this Deed are cumulative and not exclusive of any rights or remedies provided by law or any other such right or remedy.

Other Instruments

10.2 Subject to the other covenants of this Deed, the rights and obligations of the Parties pursuant to this Deed are in addition to and not in derogation of any other right or obligation between the Parties under any other deed or agreement to which they are Parties.

11. VARIATIONS AND AMENDMENTS

No term or provision of this Deed may be amended or varied unless such amendment or variation is reduced to writing and signed by the Parties hereto in the same manner as this instrument.

12. APPLICABLE LAW

This Deed shall be governed and construed in all respects in accordance with the law of [applicable State or Territory] and the parties hereto hereby submit to the jurisdiction applicable of the Courts of the said [applicable State or Territory] and the Commonwealth of Australia in respect of all matters arising hereunder or relating hereto.

13. NOTICES

13.1 A notice or other communication which may be given to or served on the Confidant under this Deed shall be deemed to have been duly given or served if it is in writing signed by the Customer and is either delivered by hand, posted or a copy transmitted electronically to the Confidant at any registered office of the Confidant or posted to the Confidant's address set out herein or such other address as may be notified in writing to the Customer from time to time.

13.2 A notice or other communication which may be given to or served on the Customer under the Deed shall be deemed to have been duly given or served if it is in writing, signed by or on behalf of the Confidant and is either delivered by hand, posted or a copy transmitted electronically to the Customer at the address set out herein or such other address as may be notified in writing to the Confidant from time to time.

13.3 A notice sent by post shall be deemed to have been given at the time when, in due course of transmission, it would have been delivered at the address to which it is sent.


Executed as a Deed

SIGNED SEALED AND DELIVERED ))

by ................................................................................................... ) ...........................................................................................[insert name of Customer representative] ) (signature of Customer representative)

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)in the capacity as .......................................................................... )[insert Position] )

)in the presence of .......................................................................... ) ............................................................................................[insert name of Witness] ) (signature of Witness)


by ................................................................................................. )[insert name of Confidant] ) ...........................................................................................

) (signature of Confidant)in the presence of ......................................................................... )[insert name of Witness] )

) ............................................................................................) (signature of Witness)

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SCHEDULE 11(subclause 31.2 - Contract Authority)

(subclause 47.2 - Customer)UNCONDITIONAL FINANCIAL UNDERTAKING

THIS DEED ("this Undertaking") made the ..................................... day of ...................................................... 199.........

BETWEEN ......................................................................................................................................................................................................................[insert name of Government party]

(hereinafter called "the Contract Authority/Customer") of the first part ]

AND ................................................................................................................................................................................................................................

(hereinafter called "the Guarantor") of the second part

NOW THIS DEED WITNESSES AS FOLLOWS:

At the request of the Contractor [insert Contractor's name] (hereinafter called "the Contractor") and the Guarantor and in consideration of the Contract Authority/Customer accepting this Undertaking:

1. The Guarantor unconditionally undertakes and covenants to pay to the Contract Authority/Customer on demand without reference to the Contractor and notwithstanding any notice given by the Contractor to the Guarantor not to pay same, any sum or sums which may from time to time be demanded in writing by the Contract Authority/Customer to a maximum aggregate sum of $ [..............dollars].

2. The Guarantor’s liability under this Undertaking shall be a continuing liability and shall continue until payment is made under this Undertaking of the said maximum aggregate sum or the Contract Authority/Customer notifies the Guarantor that this Undertaking is no longer required.

3. This Undertaking shall be governed by and construed in accordance with the laws for the time being of the [insert name of applicable State or Territory].

The parties have hereto executed this Undertaking the day and year first hereinbefore written.


by ................................................................................................... )[insert name of Contract Authority/Customer representative] ) .......................................................................................

) (signature of Contract Authority/Customer) representative)

for and on behalf of ....................................................................... )[insert name of Contract Authority/Customer] )

)in the presence of ...................................................................... ) .......................................................................................[insert name of Witness] ) (signature of Witness)


by ........................................................................................ ) .........................................................................................[insert name of Guarantor] ) (signature of Guarantor)for on behalf of Guarantor by its duly )constituted Attorney under )Power of Attorney No. ............................................................. )[insert Attorney No.] )

) ..........................................................................................in the presence of ...................................................................... ) (signature of Witness)insert name of Witness] )

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SCHEDULE 12

(subclause 30.3 - Contract Authority)(subclause 48.2 - Customer)PERFORMANCE GUARANTEE

THIS DEED OF GUARANTEE made the ...................................day of ...................................................... 199 .......

BETWEEN ........................................................................................................................................................................................................[insert name of Government party]

(hereinafter called the "Contract Authority/Customer") of the one part,

AND

.............................................................................................................................................................................................................................[insert Company's name and ACN]

(hereinafter called the "Guarantor") of the other part.

WHEREAS:

A. The Contract Authority/Customer wishes to procure information technology Products and Services.

B. .............................................................................................................................................................................................................[insert name of Contractor] (hereinafter called "the Contractor") has agreed to supply the Products and Services for the Contract Authority/Customer pursuant to the Contract annexed hereto hereinafter called "the Contract").

C. The Guarantor agrees to provide the guarantees and indemnities hereinafter appearing.

NOW THEREFORE THIS DEED WITNESSES AS FOLLOWS:

The Guarantor hereby guarantees to the Contract Authority/Customer the performance of the obligations undertaken by the Contractor under the Contract on the following terms and conditions:

(1) If the Contractor (unless relieved from the performance of the Contract by the Contract Authority/Customer or by statute or by a decision of a tribunal of competent jurisdiction) shall fail to execute and perform its undertakings under the Contract the Guarantor will, if required to do so by the Contract Authority/Customer, complete or cause to be completed the undertakings set forth in, and in accordance with the conditions of, the Contract. If the Contractor should commit any breach of its obligations, and such breach is not remedied by the Guarantor pursuant to the foregoing sentence, and the Contract is then terminated for default, the Guarantor shall indemnify the Contract Authority/Customer against costs and expenses directly incurred by reason of such default.

(2) The Guarantor shall not be discharged or released or excused from this Deed of Guarantee by an arrangement made between the Contractor and the Contract Authority/Customer with or without the consent of the Guarantor, or by any alteration, amendment or variation in the obligations assumed by the Contractor or by any forbearance whether as to payment, time, performance or otherwise. This guarantee by the Guarantor to assume the obligations of the Contractor shall continue in force and effect until completion of all the Contractor's obligations under the Contract or until the completion of the undertakings of this Deed of Guarantee by the Guarantor.

(3) The obligations of the Guarantor under this Deed of Guarantee shall not exceed the obligations of the Contractor under the Contract.

(4) This Deed of Guarantee shall be subject to and construed in accordance with the laws in force in the [insert name of applicable State or Territory] and the parties agree that the courts of that [State or Territory] shall have jurisdiction to entertain any action in respect of, or arising out of, this Deed of Guarantee and hereby submit themselves to the jurisdiction of those courts.

(5) For the purpose of this Deed of Guarantee where an undertaking of the Company under the Contract has not been performed, the Company shall be taken to have failed to perform that undertaking notwithstanding that the Company shall have been dissolved or be subject to external administration procedures under Chapter 5 of the Corporations Law or any other Law.

(6) This Guarantee shall be a continuing guarantee to the Contract Authority/Customer until the obligations and liabilities of the Company under the Contract shall in all respects have been performed observed and discharged.

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(7) (i) A notice or other communication which may be given to or served on the Guarantor under this Deed of Guarantee shall be deemed to have been duly given or served if it is in writing, signed on behalf of the Contract Authority/Customer and is either delivered by hand, posted or a copy transmitted electronically to the Guarantor or its agent at any registered office of the Guarantor or posted to the Guarantor's address set out hereinbefore or such other address as is notified in writing to the Contract Authority/Customer from time to time;

(ii) A notice or other communication which may be given to or served on the Contract Authority/Customer under this Deed of Guarantee shall be deemed to have been duly given or served if it is in writing, signed by or on behalf of the Guarantor and is either delivered by hand, posted or a copy transmitted electronically to the Contract Authority/Customer at the address set out hereinbefore or such other address as is notified in writing to the Guarantor from time to time;

(iii) A notice sent by post shall be deemed to have been given at the time when, in due course of transmission, it would have been delivered at the address to which it is sent;

(iv) A notice sent by facsimile transmission or transmitted electronically shall be deemed to have been given when the machine on which the notice is sent reports that the notice has been transmitted satisfactorily.

IN WITNESS WHEREOF the parties hereto have executed these presents on the day and year first hereinbefore written.


for and on behalf of .......................................................................... )[insert name of Contract Authority/Customer] ) ..................................................................................................

) (signature of Contract Authority/ Customer representative)by ............................................................................................ )[insert name of Contract Authority/Customer Representative] )

))

in the presence of ......................................................................... )[insert name of witness not a party to this Deed] ) ..................................................................................................

) (signature of witness)

THE COMMON SEAL of ............................................................... )[insert Guarantor's name & ACN] )

) (Corporate Seal))

was hereto affixed by ................................................................ )[authority of the Board of Directors] ) ...............................................................................................

) (signature of Director))

in the presence of ........................................................................... )[insert name of Secretary or other permanent officer] ) ...............................................................................................

) (signature of Secretary or other permanent officer))

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SCHEDULE 13

(subclause 50.2)ESCROW AGREEMENT

This Agreement is made the ............................................. day of .............................................199............BETWEEN ........................................................................................................................................................................................................[insert name, and A.C.N, if applicable] (in this Agreement called the "Escrow Agent") of the first part

AND ..................................................................................................................................................................................................................[insert name, and A.C.N, if applicable and GITC Agreement Number](in this Agreement called "the Contractor") of the second part

AND....................................................................................................................................................................................................................[insert name of Government Party] (in this Agreement referred to as "the Contract Authority/Customer") of the third part

WHEREAS:

A. By Contract made on the ........................ day of ........................................... 199.... the Contractor has agreed to grant a licence to the Contract Authority/Customer to use the Licensed Software.

B. The Contractor and the Contract Authority/Customer have agreed to appoint an escrow agent and the Escrow Agent has agreed to act as Escrow Agent and to hold the Source Code for the Licensed Software on the following terms and conditions.

NOW THIS CONTRACT WITNESSES:

1. Interpretation

In this Agreement the following words have the following meaning:

1.1 "Defect" means a defect, error or malfunction in that software such that the Licensed Software does not comply with and cannot be used in accordance with the Contractor's Specifications;

"Escrow Fee" means the fee set out in Attachment 1;

"Licence Agreement" means the Agreement pursuant to which the Contractor has granted a licence to the Contract Authority/Customer to use the Licensed Software;

"Licensed Software" means the software specified in Attachment 2 and includes any Update or New Release of that software provided to the Customer under the Licence Agreement and any material related to the Licensed Software such as, but not limited to, flow charts, logic diagrams and listings that the Contractor makes generally commercially available from time to time;

"Licensed Software Specifications" has the same meaning as in the Licence Agreement;

"New Release" means software which has been produced primarily to extend, alter or improve the Licensed Software by providing additional functionality or performance enhancement (whether or not Defects in the software are also corrected) while still retaining the original designated purpose of the Licensed Software;

"Period of the Licence" has the same meaning as it has in the Licence Agreement;

"Source Code" means the Licensed Software expressed in human-readable language which is necessary for the understanding, maintaining, modifying, correction and enhancing of the Licensed Software and that is deposited with the Escrow Agent in accordance with this Contract;

"Supporting Material" means all of the material and data developed and used in and for the purpose of creating the software including (but not limited to) compiled object code, tapes, operating manuals and other items listed in Attachment 3;

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"Update" means software which has been produced primarily to overcome Defects in, or to improve the operation of, the Licensed Software without significantly altering the Specifications for that software whether or not the Licensed Software has also been extended, altered or improved by providing additional functionality or performance enhancement;

1.2 In this Contract, unless the contrary intention appears:

(a) monetary references are references to Australian currency;

(b) the clause and subclause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;

(c) a cross reference to a clause number is a reference to all its subclauses;

(d) words in the singular number include the plural and vice versa;

(e) words importing a gender include any other gender;

(f) a reference to a person includes a partnership and a body whether corporate or otherwise;

(g) a reference to a clause or subclause is a reference to a clause or subclause of this Contract;

(h) a reference to a Schedule is a reference to a Schedule to this Document;

(i) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

1.3 Where an obligation is imposed on the Escrow Agent under this Contract, that obligation shall be deemed to include an obligation to ensure that no act, error or omission on the part of the Escrow Agent's employees, agents or sub-contractors or their employees or agents occurs which will prevent the discharge of the Escrow Agent's obligation.

1.4 Where an obligation is imposed on the Contractor under this Contract, that obligation shall be deemed to include an obligation to ensure that no act, error or omission on the part of the Contractor's employees, agents or sub-contractors or their employees or agents occurs which will prevent the discharge of the Contractor's obligation.

1.5 Where an obligation is imposed on the Contract Authority/Customer under this Contract, that obligation shall be deemed to include an obligation to ensure that no act, error or omission on the part of the Contract Authority/Customer employees or agents occurs which will prevent the discharge of the Contract Authority/Customer's obligations.

2. Duration

This Contract is in force until the Source Code is released in accordance with this Contract or the Agreement is otherwise terminated.

3. Appointment of Escrow Agent

The Escrow Agent is hereby appointed jointly by the Contract Authority/ Customer and the Contractor and, subject to the terms and conditions of this Contract, is granted full power and authority to act on behalf of each Party to this Contract.

4. Contractor's Obligations

4.1 The Contractor shall deliver to, and deposit with, the Escrow Agent one copy of the Source Code and the Supporting Material within seven (7) days of the date of this Contract.

4.2 The Contractor shall maintain, amend, modify, up-date and enhance the Source Code and Supporting Material at all times and shall ensure that the Source Code and Supporting Material deposited with the Escrow Agent is kept fully up-to-date and if necessary replaced at the request of the Escrow Agent and accurately reflects the Licensed Software including all modifications, amendments, Updates and New Releases made to, or in respect of, the Licensed Software.

4.3 The Contractor warrants to the Customer that the Source Code is, to the best of the knowledge of the Contractor, free from any virus or program device which would prevent the Licensed Software from performing its desired function or which would prevent or impede a thorough and effective verification thereof.

4.4 The Contractor grants to the Escrow Agent a licence to enable the Escrow Agent to deal with the Source Code and Supporting Material as is necessary to enable the Escrow Agent to comply with its obligations under this Agreement.

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5. Escrow Agent's Obligations

5.1 The Escrow Agent shall accept custody of the Source Code on the date of delivery in accordance with subclause 4.1 of this Contract and, subject to the terms and conditions of this Contract, shall hold the Source Code on behalf of the Contract Authority/Customer and the Contractor.

5.2 The Escrow Agent shall take all necessary steps to ensure the preservation, care, maintenance, safe custody and security of the Source Code while it is in the possession, custody or control of the Escrow Agent, including storage in a secure receptacle and in an atmosphere which does not harm the Source Code and the Supporting Material.

5.3 The Escrow Agent shall bear all risks of loss, theft, destruction of or damage to the Source Code while it is in the Escrow Agent's possession, custody or control.

5.4 If the Source Code is lost, stolen, destroyed or damaged while it is in the possession, custody or control of the Escrow Agent, the Escrow Agent shall, at its own expense, obtain from the Contractor a further copy of the Source Code provided that the Contractor is able to supply the Source Code and so long as the Contractor is not in breach of its obligations to replace the Source Code set out in subclause 4.2..

5.5 The Escrow Agent is not obliged to determine the nature, completeness or accuracy of the Source Code lodged with it.

6. Escrow Fee and Expenses

6.1 The Contract Authority/Customer shall pay the Escrow Fee in the sum of [$ ] annually in advance commencing on the date of this Contract (unless a lesser period of advance payment is agreed).

6.2 All expenses and disbursements incurred by the Escrow Agent in connection with this Contract shall be borne wholly and completely by the Escrow Agent.

6.3 All expenses and disbursements incurred by the Contractor in connection with this Contract shall be borne wholly and completely by the Contractor.

7. Testing and Verification

7.1 The Contract Authority/Customer may, in the presence of and under the supervision of the Contractor, analyse and conduct tests in relation to the Source Code and Supporting Material to verify that the Source Code and Supporting Material consists of the relevant materials as specified in Attachment 2 and Attachment 3.

7.2 The Customer may engage an independent assessor to undertake analysis and tests of the Source Code and Supporting Material for verification purposes, on its behalf. The Escrow Agent has no responsibility for testing and verification of the Source Code or Supporting Material except as specified in subclause 7.3.

7.3 The Escrow Agent shall release the Source Code and Supporting Material to the independent party upon presentation of a Release form signed by the Customer and the Contractor specifying the material to be released and identifying the person to whom that material may be released.

8. Release of the Source Code and Supporting Material

8.1 The Escrow Agent shall not release, or allow access to, the Source Code and Supporting Material except in accordance with the provisions of this Agreement.

8.2 The Escrow Agent shall release the Source Code to the Contract Authority/Customer upon written notice from the Contract

Authority/Customer that:

(a) the Contractor has become subject to any form of insolvency administration;

(b) the Contractor has ceased for any reason to maintain or support the Licensed Software;

(c) the Licence Agreement has been terminated by the Contract Authority/Customer for breach of contract by the Contractor; or

(d) if this Agreement is terminated.

8.3 Where the Licence Agreement has been terminated by the Contractor or where the Contract Authority/Customer has agreed to the release the Escrow Agent shall, upon written request from the Contractor, release the Source Code and Supporting Material to the Contractor.

8.4 The Escrow Agent shall be under no obligation or responsibility to verify or otherwise test the validity of any notice received, or its contents.

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9. Termination

9.1 The Escrow Agent may, by giving three (3) months prior written notice to the Contract Authority/Customer and the Contractor, terminate this Agreement subject to the pro-rata refund of any advance payment of the Escrow Fee.

9.2 The Contract Authority/Customer and the Contractor may jointly terminate this Contract immediately if the Escrow Agent:

(a) has become subject to any form of insolvency administration; or

(b) is in breach of any obligation under this Contract so that there is a substantial failure by the Escrow Agent to perform or observe this Contract.

9.3 If this Contract is terminated in accordance with this clause while the Licence Agreement remains in force, the Contract Authority/Customer and the Contractor shall enter into a new Escrow Agreement on the same terms and conditions as are set out in this Contract, with an alternative escrow agent who is acceptable to both the Contract Authority/Customer and the Contractor.

9.4 The Contract Authority/Customer and the Contractor may, upon giving 30 days prior written notice to the Escrow Agent, jointly terminate this Agreement, however no refund of advance payment of the Escrow Fee will be payable.

10. Confidentiality

10.1 The Escrow Agent shall not, except as permitted by this Contract, make public or disclose to any person any information about this Contract or the Source Code.

10.2 The Escrow Agent shall not reproduce, or cause to have reproduced, a copy of the Source Code or any part thereof except if the Escrow Agent reasonably believes it is necessary to carry out its obligations under this Agreement.

10.3 The obligations under this clause shall survive the termination of this Contract.

11. Compliance with Laws

The Escrow Agent shall in carrying out this Contract comply with the provisions of any relevant Statutes, Regulations, By-Laws and the requirements of any Commonwealth, State or local authority.

12. Resolution of Disputes

In the event of a dispute arising under this Contract, the Parties shall consult with each other about whether the dispute should be resolved by way of:

(a) negotiation;

(b) alternative dispute resolution procedures; or

(c) arbitration.

13. Applicable LawThis Contract shall be governed by and construed in accordance with the laws from time to time in force in the [insert name of applicable State or Territory] and the Parties agree that the Courts of that [insert State or Territory as applicable] shall have jurisdiction to entertain any action in respect of, or arising out of, this Contract.

14. Variation and Waiver

14.1 This Contract shall not be varied either in law or in equity except by agreement in writing signed by the Escrow Agent, the Contract Authority/Customer and the Contractor.

14.2 A waiver by one Party of a breach of a provision of this Contract by another Party shall not constitute a waiver in respect of any other breach or of any subsequent breach of this Contract. The failure of a Party to enforce a provision of this Contract shall not be interpreted to mean that Party no longer regards that provision as binding.

15. Assignment

The Contractor and the Escrow Agent, or either of these, shall not assign, in whole or in part, its benefits under this Contract without the written consent of the Contract Authority/Customer.

16. Severability

Each provision of this Contract, and each part thereof shall, unless the context otherwise necessarily requires it, be read and construed as a separate and severable part thereof, so that if any provision, or part thereof, is void or otherwise unenforceable for any reason, then that

4851-17 | 3018032 | December 2018Page 118

provision, or part thereof, as the case may be, shall be severed and the remainder shall be read and construed as if the severable provision, or part thereof, had never existed.

17. Notices

17.1 Any notice or other communication which may be given to or served on the Escrow Agent under this Contract shall be deemed to have been duly given or served if it is in writing and, except in respect of a notice under subclauses 8.2 or 8.3, signed by the Delegate and the Contractor and it is either delivered by hand or posted, or a copy is transmitted electronically, to the Escrow Agent at the address set out in clause 17.5 or such other address as may be notified to the Contract Authority/Customer and the Contractor from time to time by the Escrow Agent.

17.2 Any notice or other communication which may be given to or served on the Contract Authority/Customer or the Contractor under this Contract shall be deemed to have been duly given or served if it is in writing and signed by the Escrow Agent and it is either delivered by hand or posted, or a copy is transmitted electronically, to the Contract Authority/Customer and the Contractor at the addresses for the Contract Authority/Customer and the Contractor set out in subclause 17.5 or such other addresses as may be notified to the Escrow Agent from time to time by the Contractor and the Contract Authority/Customer.

17.3 A notice sent by post shall be deemed to have been given at the time when, in due course of the post, it would have been delivered at the address to which it is sent, which address is to be the address ascertained in accordance with this Contract.

17.4 A notice sent by facsimile transmission or transmitted electronically shall be deemed to be given when the machine on which the notice is sent reports in writing that the notice has been transmitted satisfactorily.

17.5 (a) Address for the Escrow Agent:

.......................................................................................................................................................................................................

.......................................................................................................................................................................................................

.......................................................................................................................................................................................................

(b) Address for the Contractor:

.......................................................................................................................................................................................................

.......................................................................................................................................................................................................

.......................................................................................................................................................................................................

(c) Address for the Contract Authority/Customer:

.......................................................................................................................................................................................................

.......................................................................................................................................................................................................

.......................................................................................................................................................................................................

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IN WITNESS WHEREOF The Parties have set their hands and seals on the date first mentioned.

SIGNED BY ......................................................................... ))

for and on behalf of ......................................................................... )[insert name of Government party] )

)by .......................................................................................... ) .............................................................................................

) (signature of Government Party representative)in the presence of ......................................................................... )[insert name of witness] )

THE COMMON SEAL OF ............................................................... )[insert Escrow Agent's name and ACN] )was hereto affixed by authority of the )Board of Directors in the presence ) ...........................................................................................of .......................................................................................... ) (Signature of Escrow Agent)[insert name of witness] )

THE COMMON SEAL OF ............................................................... ) ...........................................................................................[insert Contractor's name and ACN] ) (Signature of witness)

))

was hereto affixed by resolution of the )Board of Directors in the presence ) ............................................................................................of ........................................................................................... ) (Signature of Contractor)[insert name of witness] )

)) ............................................................................................) (Signature of witness)

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ESCROW AGREEMENT

ATTACHMENT 1

DETAILS OF ESCROW FEE:

Deposit Fee: ........................................................................................................................................................................................................

Storage Fee: ........................................................................................................................................................................................................

Retrieval Fee: ........................................................................................................................................................................................................

Release Fee: ........................................................................................................................................................................................................

Collection Fee: ........................................................................................................................................................................................................

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ESCROW AGREEMENT

ATTACHMENT 2

DETAILS OF LICENSED SOFTWARE TO BE HELD IN ESCROW:

Source Code:

..........................................................................................................................................................................................................................................

..........................................................................................................................................................................................................................................

..........................................................................................................................................................................................................................................

..........................................................................................................................................................................................................................................

..........................................................................................................................................................................................................................................

...........................................................................................................................................................................................................................................

Flow Charts: ........................................................................................................................................................................................................

Diagrams: ........................................................................................................................................................................................................

Listings: ........................................................................................................................................................................................................

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ESCROW AGREEMENT

ATTACHMENT 3

SUPPORTING MATERIAL

Insert details of support material relevant to the Licensed Software, for example:

× technical documentation sufficient to allow a competent computer programmer to understand and maintain the version of the software to which the documentation relates.

× relevant maintenance tools and compilers and assemblers (if standard tools, description thereof will suffice) and third party software utilities.

× description of code generation.

× description of third party software required for support and availability thereof.

× identification of key personnel involved with the development of the software.

× operational manuals, listings, flow charts etc.

× details of machine/processor/system configuration.

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SCHEDULE 14

(subclause 60.2)SPECIFIED SUB-CONTRACTORS

(List here any specified sub-contractors and specify the Product and Service to be provided or the Service to be performed by the sub-contractors).


Name of Sub-Contractor

Products/Deliverables

Hardware Maintenance Service

Support Service

Software Service

Any other relevant service (eg. training)

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SCHEDULE 15

(subclause 60.6)STATUTORY DECLARATION BY SUB-CONTRACTOR

I (1) ..................................................................................................................................................................................................................................

do solemnly and sincerely declare that to the best of my knowledge and belief:

1. [insert full sub-contractor company name and its ACN] ("the Sub-contractor") has been selected as a sub-contractor to [insert full name of Contractor] ("the Contractor") for the performance of a contract with [insert full name of Customer] ("the Customer") for the [insert short description of contract and contract number and date, if known] ("the Contract").

2. The Sub-contractor is aware of the relevant contractual terms and conditions of the Contract between the Contractor and the Customer which relate to its participation in the integration of the System and will be entering into a sub-contract with the Contractor in the near future on terms that will not be inconsistent with that Contract for [insert short description of the sub-contract] ("the Sub-contract").

3. There are not reasons of which I am aware that would prevent the Sub-contract from being signed and performed in a manner that would allow the satisfactory and timely performance of the Contract.

[if necessary insert further paragraphs dealing with Specified Personnel, type of organisation, number and designation of staff, locations, services to be performed, etc.]

And I make this solemn declaration by virtue of the penalties provided by the Statutory Declarations Act 1959 (Cth.) for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.

(2) ....................................................................................................................................................................................................................................

Declared at .....................................................................................................

the ................................................................................ day of ............................................................. 199..........

Before me, (3) ..................................................................................................................................................................................................................

(4) ....................................................................................................................................................................................................................................

(1) Here insert name, address and occupation of person making the declaration and his or her position in the subcontractor company.

(2) Signature of person making declaration.

(3) Signature of person before whom the declaration is made*

(4) Here insert title of person before whom the declaration is made.

* This statutory declaration, in accordance with section 8 of the Statutory Declarations Act 1959, may be made before -

(a) a Magistrate;(b) a Justice of the Peace;(c) a Commissioner for Affidavits;(d) a Commissioner for Declarations'(e) a Notary Public;(f) a person before whom a statutory declaration may be made under the law of the State in which the declaration is made; or (g) an Australian Consular Officer or an Australian Diplomatic Officer as defined by section 2 of the Consular Fees Act 1955.

Note: State and Territories to use equivalent, appropriate legislation and modify this from accordingly.

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SCHEDULE 16

(Clause 146)


FACILITIES MANAGEMENT SERVICE PLANTo be agreed between the Customer and the Contractor in individual cases.

This Annexure must document a complete description of the Facilities Management Services to be performed by the Contractor. This Annexure sets out the nature of the work that the Contractor is to perform and so is a most important part of the Contract. Its terms must be precise and specific and cover all actions that are required of the Contractor.

The title of any Service and a detailed statement of work to be undertaken should be included. This may be achieved by annexing or, where this is not practicable, by incorporating by reference (with adequate and precise description) correspondence between the Parties including any proposal from the Contractor.

This Plan should address the relevant aspects of the Facilities Management Services including if appropriate the following:-

1. Identify and describe accurately the nature of the Services to be provided.

2. Commencement dates for all tasks.

3. Completion dates for all tasks.

4. Identify Service Performance Factors.

5. Detail the tasks to be performed by the Customer’s employees.

6. For each task to be performed or milestone to be achieved and various responsibilities of the Contractor and the Customer shall be specified.

7. The Contractor must specify any work which can be performed off-site.

8. Details of:

(a) hierarchy of personnel (both Customer and Contractor personnel);

(b) responsibilities.

9. Specify the times and places for the supply of Products or Services which are to be provided by the Customer.

10. Specify intervals at which the Contractor is required to provide written progress reports to the Delegate in accordance with paragraph 51.4(b).

11. Details of training.

12. Specify all payment details.

13. Specify other particulars and details agreed between the Parties.

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SCHEDULE 17

(Clause 19.1)

CONFIDENTIAL PROVISIONS

There are no Confidential Provisions.

[Delete the previous or the next clause (as appropriate) and this instruction]

The following clauses, schedules, attachments, annexures, appendices or other material are to remain confidential to the parties under clause until:

(a)

4851-17 | 3018032 | December 2018Page 127

GITC Head Agreement - purchasing.tas.gov.au€¦ · Web view(a)where subclause 4.1(a) applies,...

Documents

Transcript of GITC Head Agreement - purchasing.tas.gov.au€¦ · Web view(a)where subclause 4.1(a) applies,...