Schedule 1: General Order Form
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Item 60REVIEW OF FEESEscrow Deed of Agreement ATTACHMENT 2 Details of licensed software to be held in Escrow
Escrow Deed of Agreement ATTACHMENT 3 Supporting materials Insert details of support material relevant to the Licensed Software, for example:
: Deed Poll – Approved Agents This Deed Poll is made on [insert date] by [insert full legal name of Approved Agent and ACN/ABN] (Approved Agent) in favour of [insert full legal name of Contract Authority] (Contract Authority) Definitions Customer means [insert full legal name of the Customer]. Customer Contract means the agreement dated [insert date] signed by the Customer and the Approved Agent as agent for the supply of the Products and/or Services under that agreement. By this Deed:
Signed, sealed and delivered by [insert full legal name of Approved Agent and ACN/ABN]
in accordance with s127 of the Corporations Act 2001 (Cth) by:
Signature Director Signature of Director/Secretary
Print name Print name
Date Date : Statutory Declaration – Subcontractor Oaths Act (NSW), 1900 Ninth Schedule
1. [insert full Subcontractor company name and its ACN/ABN] (Subcontractor) has been selected as subcontractor to, [insert name of the Contractor and its ACN/ABN] (Contractor) under an agreement between the [insert name of Customer] (Customer) and the Contractor dated [insert date of Customer Contract]. 2. The Subcontractor will offer to enter into an agreement with the Contractor in connection with the Customer Contract on terms that are not inconsistent with the terms of the Customer Contract in so far as those terms are relevant to the Subcontractor. 3. As at the date of this Statutory Declaration there are no reasons of which I am aware that would prevent the Subcontractor’s agreement with the Contractor from being performed in a manner that would allow the satisfactory and timely performance of that subcontract. And I make this solemn declaration, as to the matter aforesaid according to the law in this behalf made, and subject to the punishment by law provided for any wilfully false statement in any such declaration.
: Deed of Confidentiality
Between [insert name of the Customer (Customer) And [insert name and address of Subcontractor] (Subcontractor) RECITALS
WHAT IS AGREED Recitals The Parties acknowledge the truth and accuracy of the Recitals. Interpretation Definitions In the interpretation of this Deed unless a contrary intention appears the following expressions will have the following meanings: Agreement means the Customer Contract entered into under the Procure IT Framework between the Contractor and the Customer under which the Contractor will supply Deliverables to the Customer dated [insert date]. Business Day means any day that is not a Saturday, Sunday or a public holiday in New South Wales. Confidential Information means information that: (I)is by its nature confidential; or (II)is communicated by the Customer to the Subcontractor as confidential; or (III)the Subcontractor knows or ought to know is confidential; or (IV)relates to: the Products and Services; the financial, the corporate and the commercial information of the Customer; the affairs of a third party (provided the information is non-public); and the strategies, practices and procedures of the State and any information in the Subcontractor’s possession relating to the State public service, but excludes any information which the Subcontractor can establish was: in the public domain, unless it came into the public domain due to a breach of confidentiality by the Subcontractor or another person; independently developed by the Subcontractor; or in the possession of the Subcontractor without breach of confidentiality by the confidant or other person.
(b)copyright, patent, trademark, design, semi-conductor or circuit layout rights, registered design, trademarks or trade name and other protected rights, or related rights, existing worldwide; and (c)any licence, consent, application or right, to use or grant the use of, or apply for the registration of, any of the rights referred to in (a), but does not include the right to keep confidential information confidential, moral rights, business names, company names or domain names. Notice means notice in writing given in accordance with this Deed. State means the State of New South Wales. General Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this Deed, except where the context makes it clear that a rule is not intended to apply A reference to: (I)legislation (including subordinate legislation) is a reference to that legislation as amended, re-enacted or replaced ,and includes any subordinate legislation issued under it; (II)a document or agreement, or a provision of a document or agreement, is a reference to that document, agreement or provision as amended, supplemented, replaced or novated; (III)a person includes any type of entity or body of persons whether or not it is incorporated or has a separate legal entity; (IV)anything (including a right, obligation or concept) includes each part of it. If this Deed expressly or impliedly binds more than one person then it shall bind each such person separately and all such persons jointly. A singular word includes the plural, and vice versa. A word which suggests one gender includes the other gender. The words “include(s)” and “including” are not words of limitation. If a word is defined, another part of speech of that word has a corresponding meaning. Non disclosure The Subcontractor must not disclose the Confidential Information to any person without the prior written consent of the Customer. The Customer may grant or withhold its consent in its discretion. If the Customer grants its consent, it may impose conditions on that consent, including a condition that the Subcontractor procures the execution of a Deed in these terms by the person to whom the Subcontractor proposes to disclose the Confidential Information. If the Customer grants consent subject to conditions, the Subcontractor must comply with those conditions.52 Despite clause 3.1, the Subcontractor may disclose the Confidential Information: (V)to its directors, officers, employees and contractors; (VI)to the Contractor and its directors, officers, employees and the Contractor’s other contractors who are engaged in the supply of the Deliverables and their directors, officers, employees, each referred to a permitted recipients, where such disclosure is essential to carrying out their duties in respect of the Express Purpose. Despite clause 3.1, the Subcontractor may disclose the Confidential Information: (VII)to its lawyers, accountants, insurers, financiers and other professional advisers where the disclosure is in connection with advising on, reporting on, or facilitating the performance under this Deed; or (VIII)if the Subcontractor is required to disclose by law, order of a court or tribunal of competent jurisdiction or the listing rules of an applicable securities exchange. Before disclosing the Confidential Information to a permitted recipient, the Subcontractor will ensure that the permitted recipient is aware of the confidentiality requirements of this Deed and is advised that it is strictly forbidden from disclosing the Confidential Information or from using the confidential information other than as permitted by this Deed. The Confidential Information must not be copied or reproduced by the Subcontractor or the permitted recipients without the expressed prior written permission of the Customer, except as for such copies as may be reasonably required for the Express Purpose. If any person, being any director, officer, contractor or employee of the Subcontractor, who has had access to the Confidential Information in accordance with this clause 3 leaves the service or employ of the Subcontractor then the Subcontractor will procure that that person does not do or permit to be done anything which, if done or permitted to be done by the Subcontractor, would be a breach of the obligations of the Subcontractor under this Deed.
The Subcontractor must use the Confidential Information only for the Express Purpose and must not without the prior written consent of the Customer use the Confidential Information for any purpose other than the Express Purpose. The Subcontractor must, unless otherwise authorised by the prior written consent of the Customer: (IX)treat as confidential and secret all of the Confidential Information which the Subcontractor has already acquired or will acquire from the Customer; (X)take proper and adequate precautions at all times and enforce such precautions to preserve the confidentiality of the Confidential Information and take all necessary action to prevent any person obtaining access to the Confidential Information other than in accordance with this Deed; (XI)not directly or indirectly use, disclose, publish or communicate or permit the use disclosure, publication or communication of the Confidential Information to any person other than in accordance with this Deed; (XII)not copy or disclose to any person in any manner any of the Confidential Information other than in accordance with this Deed; and (XIII)ensure that the permitted recipients comply with the terms of this Deed and keep the Confidential Information confidential and not use or disclose the Confidential Information other than as permitted by this Deed. Survival This Deed will survive the termination or expiry of the Agreement for a period of 6 years. Rights of the Customer Production of Documents The Customer may demand the delivery up to the Customer of all documents in the possession or control of the Subcontractor containing the Confidential Information. The Subcontractor must immediately comply with a demand under this clause 6. If the Customer makes a demand under this clause 6, and documents containing the Confidential Information are beyond the Subcontractor’s possession or control, then the Subcontractor must provide full particulars of the whereabouts of the documents containing the Confidential Information, and the identity of the person in whose possession or control they lie. In this clause 6, “documents” includes any form of storage of information, whether visible to the eye or not.
The Customer may take legal proceedings against the Subcontractor or third parties if there is any actual, threatened or suspected breach of this Deed, including proceedings for an injunction to restrain such breach. Indemnity and release The Subcontractor is liable for, and agrees to indemnify and keep indemnified the Customer in respect of, any claim, damage, loss, liability, cost, expense, or payment which the Customer suffers or incurs as a result of: (XIV)a breach of this Deed (including a breach of this Deed which results in the infringement of the rights of any third party); or (XV)the disclosure or use of the Confidential Information by the Subcontractor or the permitted recipients other than in accordance with this Deed. No exclusion of law or equity This Deed does not exclude the operation of any principle of law or equity intended to protect and preserve the confidentiality of the Confidential Information. Waiver No waiver by the Customer of one breach of any obligation or provision of this Deed will operate as a waiver of another breach of any other obligation or provision of this Deed. None of the provisions of this Deed will be taken to have been varied waived discharged or released by the Customer unless by its express consent in writing.
The rights and remedies provided under this Deed are cumulative and not exclusive of any other rights or remedies. Other Instruments Subject to the other covenants of this Deed, the rights and obligations of the parties pursuant to this Deed are in addition to and do not derogate from any other right or obligation between the parties under any other Deed or agreement to which they are parties. Variations and amendments No term or provision of this Deed may be amended or varied unless reduced to writing and signed by the parties in the same manner as this instrument. Applicable law This Deed will be governed and construed in accordance with the laws of the State. Notices Notices must be sent to the other party at the address shown in this Deed, or the address last notified to the other party in writing, or in the case of the Subcontractor, at the Subcontractor’s registered office. All notices must be in writing and signed by the relevant party and must be given either by hand delivery, post or facsimile transmission. If delivery or receipt of a notice is not made on a Business Day, then it will be taken to be made on the next Business Day.54 EXECUTED AS A DEED Signed, sealed and delivered by [insert name of Customer]
By [insert name of Customer Representative] but not so as to incur personal liability
In the presence of: [insert name of witness]
Signature of Customer Signature of Witness
Print name Print name
Date Date Signed, sealed and delivered by [insert Subcontractor’s name and ACN/ABN]
in accordance with s127 of the Corporations Act 2001 (Cth) by:
Signature Director Signature of Director/Secretary
Print name Print name
Date Date : Performance Guarantee
Between [insert full legal name of the Customer] (Customer)
And [insert full legal name and any ACN/ABN of the Guarantor] (Guarantor)
Purpose [insert full legal name and ACN/ABN of the Contractor] (Contractor) has agreed to offer to supply Products and Services to the Customer under a contract dated [insert date of Customer Contract] (Customer Contact). DEFINITIONS Business Day means any weekday that is not a public holiday in New South Wales. Contract Authority means [insert legal name of Contract Authority]. Head Agreement means [insert date and parties to the Head Agreement]. Insolvency Event means where the Contractor: (XVI)stops or suspends or threatens to stop or suspend payment of all or a class of its debts; (XVII)is insolvent with the meaning of Section 95A of the Corporations Act 2001 (Cth); (XVIII)must be presumed by a court to be insolvent by reason of an event set out in Section 459C(2) of the Corporations Act 2001 (Cth); (XIX)fails to comply with a statutory demand within the meaning of Section 459F(1) of the Corporations Act 2001 (Cth); (XX)has an administrator appointed or any step preliminary to the appointment of an administrator is taken; (XXI)has a mortgagee enter into possession of any property of that Party; (XXII)has a controller within the meaning of the Section 9 of the Corporations Act 2001 (Cth) or similar officer appointed to all or any of its property; or (XXIII)has proceedings commenced, a resolution passed or proposed in a notice of meeting, an application to, or order of, a court made or other steps taken against or in respect of it (other than frivolous or vexatious applications, proceedings, notices or steps) for its winding up, deregistration or dissolution or for it to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors, a class of them or any of them.
By this Deed, the Guarantor guarantees to the Customer the performance of the obligations undertaken by the Contractor under the Customer Contract on the following terms and conditions:
may enforce this Deed of Guarantee against all or any of the persons who constitute the Guarantor. [amend this clause as applicable]
Guarantor Physical address Postal address Fax number Contractor Physical address Postal address Fax number Customer Physical address Postal address Fax number Or such other address as a party may notify to the other party in writing from time to time.
EXECUTED BY THE PARTIES AS A DEED AT THE DATE STATED BELOW Signed, sealed and delivered by [insert name of the Customer].
By [insert name of Customer representative]
In the presence of: [insert name of witness not a party to this Deed]]
Signature of Customer representative Signature of Customer’s Witness
Print Name Print Name
Date Date Signed, sealed and delivered by [insert Contractor’s name and ACN/ABN]
in accordance with s127 of the Corporations Act 2001 (Cth) by:
Signature Director Signature of Director/Secretary
Print name Print name
Date Date : Financial Security
Between [insert name of the Customer] (Customer)
And [insert name and ACN/ABN] (Guarantor)
DEFINITIONS Business Day means any weekday that is not a public holiday in New South Wales. BY THIS DEED:
Item 61the Customer notifies the Guarantor that this Financial Security is no longer required; Item 62[insert date]; [Note: This date should be the date that is one year from the date that the last Deliverable under the Customer Contract is scheduled to pass its Acceptance Tests, or if no Acceptance Tests were required, the date that is scheduled to be 180 days from the date of delivery of the last Deliverable or performance of the last Service under the Contract] Item 63the date the Customer and Contractor agree in writing to release the Guarantor.
Guarantor Physical address Postal address Phone number Fax number
Postal address Phone number Fax number Customer Postal address Phone number Fax number or such other address as a party may notify to the other party in writing from time to time.
Item 64sent by post from and to an address within Australia, after 3 Business Days; Item 65sent by post from or to an address outside Australia, after 10 Business Days; or Item 66sent by facsimile, at the time which the facsimile machine to which it has been sent records that the communication has been transmitted satisfactorily (or, if such time is outside normal business hours, at the time of resumption of normal business hours).
Signed, sealed and delivered by [insert name of Customer]
By [insert name of Customer representative]
In the presence of: [insert name of witness not a party to this Deed]
Signature of Customer representative Signature of Contract Witness
Print name Print name
Date Date The Common Seal of [insert Guarantor’s name & ACN/ABN]
was affixed by [authority of the Board of Directors]
in the presence of [insert name of Director/Secretary or other permanent officer]
in the presence of [insert name of Director/Secretary or other permanent officer]
Signature of Director/Secretary Signature of Director/Secretary
Print name Print name
Date Date : Dispute Resolution Procedures Expert Determination If a Referral Notice is submitted under clause Error: Reference source not found of the Customer Contract, the expert is to be agreed between the Parties. If they cannot agree within 28 days of the Referral Notice, the expert is to be nominated on the application of either Party by the Chief Executive Officer, Australian Commercial Disputes Centre of NSW. The expert nominated must be a person who is an experienced Australian legal practitioner or a person with practical experience in the technology that is the subject matter of the dispute, unless otherwise agreed. The expert must not be: (I)an employee of the Parties; (II)a person who has been connected with this Customer Contract or has a conflict of interest, as the case maybe; or (III)a person who the Parties have not been able to agree on. The expert may appoint any person that the expert believes will be able to provide the specialists skills that are necessary to make a determination, including an Australian legal practitioner. The expert must consult with both Parties prior to appointing such person. When the person to be the expert has been agreed or nominated, the Customer, on behalf of both Parties, must engage the expert by letter of engagement (and provide a copy to the Contractor) setting out: (IV)the issue referred to the expert for determination; (V)the expert’s fees; (VI)the procedure for the determination set out in this Schedule; and (VII)any other matter which is relevant to the engagement. Submissions The procedure for submissions to the expert is as follows: (VIII)The Party that has referred the issue to expert determination must make a submission in respect of the issue, within 30 Business Days after the date of the letter of engagement referred to in clause . (IX)The other Party must respond within 30 Business Days after receiving a copy of that submission. That response may include cross-claims. (X)The Party referred to in clause (VIII) may reply to the response, but must do so within 20 Business Days after receiving the response, and must not raise new matters. (XI)The other Party may comment on the reply, but must do so within 20 Business Days after receiving the reply, and must not raise new matters. (XII)The expert must ignore any submission, response, reply, or comment not made within the time given in this clause , unless the Customer and the Contractor agree otherwise. (XIII)The expert may request further information from either Party. The request must be in writing, with a time limit for the response. The expert must send a copy of the request and response to the other Party, and give the other Party a reasonable opportunity to comment on the response. (XIV)All submissions, responses, replies, requests and comments must be in writing. If a Party gives information to the expert, it must at the same time give a copy to the other Party. Conference The expert must arrange at least one conference with both Parties. The request must be in writing, setting out the matters to be discussed. Each Party is entitled to be represented at any preliminary conference before the expert by its legal representatives and other authorised representatives, with information and knowledge of the issues. The expert is not bound by the rules of evidence and may receive information in any manner the expert sees fit, but must observe the requirements of procedural fairness. Consultation between the expert and a Party must only take place in the presence of the other Party, unless a Party fails to attend a conference or meeting which has been convened by the expert and of which prior notice has been given. Any Party providing information to the expert must provide that information to the other Party. The Parties agree that such a conference is considered not to be a hearing that would give anything under this Schedule the character of arbitration. In answer to any issue referred to the expert by a Party, the other Party can raise any defence, set-off or counter-claim. Questions to be determined by the Expert The expert must determine for each issue the following questions (to the extent that they are applicable to the issue): (XV)is there an event, act or omission that gives the claimant a right to compensation under the Customer Contract: for damages for breach of the Customer Contract, or otherwise in law? (XVI)if so: what is the event, act or omission? on what date did the event, act or omission occur? what is the legal right which gives rise to the liability to compensation? is that right extinguished, barred or reduced by any provision of the Customer Contract, estoppel, waiver, accord and satisfaction, set-off, cross-claim, or other legal right? (XVII)in the light of the answers to clause : What compensation, if any, is due from one Party to the other and when did it fall due? What interest, if any, is due when the expert determines that compensation? The expert must determine for each issue any other questions required by the Parties, having regard to the nature of the issue. The Parties must share equally the fees of the expert, any other costs associated with the process, including room hire expenses, transcript expenses and the like and the fees of any person appointed by the expert under clause for the determination, and bear their own expenses. If the expert determines that one Party must pay the other an amount exceeding the amount specified in General Order Form (calculating the amount without including interest on it and after allowing for set-offs), then either Party may commence litigation, but only within 56 days after receiving the determination. Unless a Party has a right to commence litigation or otherwise resolve the dispute under the Customer Contract: (XVIII)in the absence of a manifest error the Parties must treat each determination of the expert as final and binding and give effect to it; and (XIX)if the expert determines that one Party owes the other money, that Party must pay the money within 20 Business Days. Role of Expert The expert must: (XX)act as an expert and not as an arbitrator, adjudicator or as expert witness; (XXI)make its determination on the basis of the submissions of the Parties, including documents and witness statements, and the expert’s own expertise; (XXII)act impartially, free of bias and with no vested interest in the outcome of the dispute; (XXIII)adopt procedures for the Expert Determination suitable to the circumstances of the dispute so as to provide for an expeditious cost effective and fair means for the determination of the dispute; and (XXIV)issue a certificate in a form the expert considers appropriate, stating the expert’s determination and giving reasons, within 45 Business Days after the receipt of the information in clause (XI). If a certificate issued by the expert contains a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures, a mistake in the description of any person, matter or thing, or a defect of form, then the expert must correct the certificate and give notice to the Parties of such correction. Confidentiality Each Party involved in the expert determination process, including the expert, the Parties, their advisors and representatives shall maintain the confidentiality of the expert determination process and may not use or disclose to anyone outside of the expert determination process, the expert’s determination, or any information received or obtained, in the course of the expert determination process, including the existence of that information, except to the extent: (XXV)the Parties have otherwise agreed in writing; (XXVI)the information is already in the public domain; (XXVII)disclosure is required to a Party’s insurers, auditors, accountants or other professional advisers; (XXVIII)disclosure is required for the purposes of any legal proceedings relating to the dispute or the expert’s determination; or (XXIX)disclosure is otherwise required by law. : PIPP This PIPP is a sample document only and includes guidance notes for consideration. These guidance notes are included simply as suggestions. Users should obtain legal or other professional advice in developing the PIPP to achieve their objections and receive the maximum benefit from the service relationship.
Document Scope Outline the scope of the PIPP; i.e. what does it include? Project Overview Provide an overview of the project, the project objectives and any critical success factors. Outline the details of any Whole of Government or multi Agency participation. Outline any key assumptions or dependencies. Scope of Work Products and Services Specify the nature of the Products to be provided and/or any Services to be provided. Specify details of who will be providing the Products and/or Services, including any Products or Services that are to be provided by Subcontractors. Specify if the Contractor is supplying the Products or Services as a Reseller. Specify if the Contractor is acting as an Approved Agent. Specify any hardware, software or service that is to be provided by the Customer as CSI. Overview of Deliverables List of Deliverables Provide a list of the Deliverables that are to be provided by the Contractor, including: Hardware Licensed Software Hardware Maintenance and Support Services Software Support Services User Documentation Bespoke Documentation (e.g. bespoke system manuals or training materials) If any Open Source software is to be provided, and the licence terms under which it will be provided. Where Services are being provided, and the Contractor is being contracted to deliver a specific output (e.g. a design document or a report), specify the outputs of those Services. If support and/or maintenance is being supplied, specify when support/maintenance will commence. If training is to be supplied specify when and where training will occur, and what training materials will be used. Summary Table of Deliverables Insert the list of Deliverables into the following table: Note: The EXAMPLE in this table has been completed for the purchase of commodity hardware, software and related support and maintenance, together with training.
Note: It is very important to be consistent in the naming that is used for Deliverables throughout the PIPP and the other Schedules, as it is essential to be able to easily identify the same Deliverable in the many places where there is a reference to that same Deliverable, including where the Deliverable is: subject to Acceptance Testing;
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