General conditions for the provision of Services

1. Term of Agreement

(a) The Agreement begins on the Commencement Date and continues until the Completion Date, unless extended in accordance with clause 1(b) or terminated earlier in accordance with these terms. If no Completion Date is specified, the Agreement will come to an end when all Services have been completed and all payments required to be made under the Agreement have been made.
(b) A party may, by the provision of notice in writing, request the Agreement be extended beyond the Completion Date. The Agreement may only be extended for the period or periods as agreed to by the parties in writing.

2. Provision of Services

(a) The Supplier must provide the Services to the client in accordance with this Agreement and any reasonable directions given by the client from time to time.
(b) The Supplier must:
(i) complete the Services by the Completion Date and any other date(s) for delivery of the Services specified in the Tax Invoice;
(ii) promptly notify the client as soon as it becomes aware of any delay or possible delay in the supply of the Services in accordance with the Agreement;
(iii) provide fit for purpose Services in a timely and efficient manner using the standard of care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent, expert and experienced provider of services that are similar to the Services; and
(iv) use appropriately skilled and qualified Personnel to provide the Services.
(c) If the client terminates this Agreement, the client will be entitled to a full refund of all moneys paid to the Supplier in respect of the Services or deliverables which the client is unable to use following termination.

3. Price for the Services

(a) The Rates and Fees payable for the Services are fixed, and inclusive of all taxes (excluding GST), for the duration of the Agreement.
(b) The Supplier may not charge the client for any additional fees or charges, or recover any expenses or other costs from the client.

4. Invoicing and payment

(a) Prior to commencement of the Services, or as otherwise specified in the Tax Invoice, the Supplier must submit an invoice to the client at the address specified. Each invoice submitted by the Supplier must contain all information required in a tax invoice for the purposes of the GST Act, together with such other information as the client may reasonably require.
(b) On or following acceptance of the Services, the client will pay the invoiced amount, less any amount required by Law, within 7 days of receipt of an accurate invoice. If the client disputes the invoiced amount, it must pay the undisputed amount (if any) and notify the Supplier of the amount in dispute.
(c) Payment of an invoice is not to be taken as evidence that the Services have been supplied in accordance with the Agreement but must be taken only as payment on account.

5. Intellectual Property Rights

(a) Ownership of any Contract Materials will vest in the Supplier from the time of its creation. The Supplier irrevocably and unconditionally grants to the client a perpetual, non-exclusive, royalty-free, worldwide and transferable licence (including the right to sub-license) to exercise all Intellectual Property Rights in the Contract Materials to the extent necessary to allow the client the full use and enjoyment of the Services.
(b) All Pre-Existing Intellectual Property used by the parties in connection with the provision of the Services or the creation of Contract Materials remains the property of the relevant party or its licensors.
(c) The Supplier undertakes that the Services may be used in any way by the client, without identifying any person as the individual responsible for creating any material comprised in it, without infringing the Moral Rights of any person.

6. Liability

(a) The Supplier indemnifies, and will at all times keep the client and each of its Personnel indemnified, against any liabilities, losses, damages, costs and expenses (including all legal and settlement costs determined on a full indemnity basis) or compensation arising out of, or in any way in connection with, any:
(i) personal injury, including sickness and death;
(ii) property damage;
(iii) breach of an obligation of confidence or privacy, whether under this Agreement or otherwise;
(iv) fraudulent acts or omissions;
(v) wilful misconduct or unlawful act or omission;
(vi) breaches of logical or physical security;
(vii) loss or corruption of Data;
(viii) third party claim arising out of a breach of the Agreement by the Supplier or its Personnel (including breach of warranty) or any negligent act or omission of the Supplier or its Personnel; or
(ix) infringement or alleged infringement of the Intellectual Property Rights or any other rights of any person, including any third party,
which was caused, or contributed to by, any act or omission of the Supplier or any of its Personnel.

7. Termination

(a) The client may terminate the Agreement with immediate effect (or with effect from a specified date) by giving notice in writing to the Supplier if the Supplier:
(i) fails to provide the Services in accordance with the Agreement;
(ii) breaches any provision of the Agreement and, where that breach is capable of remedy, fails to remedy the breach within 2 Business Days after receiving written notice requiring it to do so (or such later date as may be specified in that notice);
(iii) breaches any provision of the Agreement that is not capable of remedy;
(iv) or any of its Personnel involved in the provision of the Services commits fraud, dishonesty or any other serious misconduct;
(v) commits any act or does anything that may be prejudicial or otherwise detrimental to the reputation of the State; or
(vi) suffers from an Insolvency Event.
(b) The client may terminate the Agreement without cause on notice to the Supplier.
(c) If the Agreement is terminated pursuant to clause 11(b), the client will pay the Supplier:
(i) for the Services performed in accordance with the Agreement up to the date of the termination; and
(ii) the unavoidable and substantiated costs incurred by the Supplier as a direct result of the termination, excluding any loss of profit,
and the client has no other liability to the Supplier in relation to that termination.
(d) When the client issues a notice under clause 11(b), the Supplier will immediately comply with any directions given in the notice and do all that is possible to mitigate its losses arising from the termination of the Agreement.
(e) The Supplier may terminate the Agreement by giving at least 20 Business Days written notice to the client if the client fails to pay amounts due under this Agreement.
(f) Termination or expiry of this Agreement will not prejudice any right of action or remedy which may have accrued to either party prior to termination or expiry.
(g) On termination or expiry the Supplier must immediately, following instructions by the client, cease using all materials that contain any Data or Confidential Information by either destroying the materials or returning the materials at no additional cost to the client.

8. Confidentiality, privacy and data protection

(a) The Supplier and its Personnel must keep the Confidential Information confidential and secure and must not disclose or otherwise make available any Confidential Information to any other person.
(b) The Supplier consents to the client publishing or otherwise making available information in relation to the Supplier (and the provision of the Services):
(i) as may be required to comply with the Contract Publishing System;
(ii) to other Victorian Public Entities or Ministers of the State in connection with the use of the Services;
(iii) to any public sector agency (of the State, any other state or territory or the Commonwealth) for the purposes of benchmarking, provided that it will not identify the Supplier;
(iv) to the office of the Auditor General appointed under section 94A of the Constitution Act 1975 (Vic) or the ombudsman appointed under the Ombudsman Act 1973 (Vic);
(v) to comply with Law, including the Freedom of Information Act 1982 (Vic); or
(vi) to the IBAC.
(c) The Supplier acknowledges that it will be bound by the Information Privacy Principles, Health Privacy Principles and any applicable Code of Practice (together, Privacy Obligations) with respect to any act done or practice engaged in by the Supplier for the purposes of the Agreement, in the same way and to the same extent as the Privacy Obligations would have applied to the client in respect of that act or practice had it been directly done or engaged in by the client.
(d) The Supplier acknowledges that the client is bound by the Protective Data Security Standards. The Supplier will not do any act or engage in any practice that would contravene or give rise to a breach of a Protective Data Security Standard in respect of any Data collected, held, used, managed, disclosed or transferred by the Supplier, on behalf of the State, under or in connection with the Agreement.

9. GST

(a) The terms used in this clause have the same meanings given to them in the GST Act.
(b) Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with the Agreement are exclusive of GST.
(c) If GST is imposed on any supply made under or in accordance with the Agreement, the recipient of the taxable supply must pay to the party making the taxable supply an amount equal to the GST payable on or for the taxable supply. Subject to the recipient first receiving a valid tax invoice, payment of the GST amount will be made at the same time the consideration for the taxable supply is to be paid or provided in accordance with the Agreement.

10. Dispute Resolution

(a) If any dispute arises under or in connection with this Agreement (Dispute), either party may at any time give written notice to the other (Dispute Notice) requesting that a meeting take place to seek to resolve the Dispute in good faith.
(b) If the Dispute is not resolved in 15 Business Days it will be referred to mediation (Mediation) conducted by the Australian Disputes Centre (ADC) in accordance with the ADC mediation guidelines (Guidelines) with each party bearing their own cost.
(c) If the parties fail to settle the Dispute at Mediation, the parties may agree to submit the dispute for resolution to final and binding arbitration.
(d) The parties will continue to perform their respective obligations under this Agreement pending the resolution of a Dispute.

11. General

(a) The Agreement is governed by and is to be construed in accordance with the Laws. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
(b) Time is of the essence in relation to the provision of the Services.
(c) The Agreement may only be varied or replaced by a written document executed by the parties.
(d) A waiver of any right, power or remedy under the Agreement must be in writing and signed by the party granting it. The fact that a party fails to do, or delays in doing, something the party is entitled to do under the Agreement does not amount to a waiver.
(e) Any provision of the Agreement which is invalid or unenforceable is to be read down, if possible, so as to be valid and enforceable, and, if that is not possible, the provision will, to the extent that it is capable, be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions.
(f) The client may set off against any sum owing to the Supplier under the Agreement any amount then owing by the Supplier to the client.
(g) Subject to clause 19(h), a party may not assign any right under the Agreement without the prior written consent of the other party. The Supplier will be responsible for acts and omissions of any assignee.
(h) The client may, by notice in writing to the Supplier, assign its rights, transfer its obligations or novate the Agreement to any Victorian Public Entity in the event of any State government restructure or other re-organisation or change in policy.

12. Entire Understanding and order for precedence

(a) In the event and to the extent of any inconsistency between these General conditions for the supply of services and the Purchase Order, the General conditions will prevail to the extent of the inconsistency. If the inconsistency remains incapable of resolution by reading down, the inconsistent provisions will be severed from the Tax Invoice without otherwise diminishing the enforceability of the remaining provisions of the Purchase Order.
(b) This Agreement contains everything the parties have agreed in relation to the Services. No party can rely on an earlier written document or anything said or done by or on behalf of another party before this Agreement was executed.

13. Survival

Clauses 3, 4, 7, 8, 9, 10, 11(c), 11(d), 11(f), 11(g), 12(a), 13, 15(b), 18, 19, 21, 22 and 23 of this Agreement survive the termination or expiry of this Agreement or the completion of the provision of Services and may be enforced at any time.

14. Definitions

In this Agreement, unless the context otherwise requires:

Agreement means the agreement for the provision of the Services consisting of these General conditions for the provision of services and the Purchase Order.

Business Day means a day which is not a Saturday, Sunday or public holiday (being a public holiday appointed as such under the Public Holidays Act 1993 (Vic)) in Melbourne.

Code of Practice means a code of practice as defined in, and approved under, the Privacy and Data Protection Act 2014 (Vic).

Completion Date means the date by which the provision of the Services must be completed by the Supplier, as specified in the Purchase Order.

Commencement Date means the date on which the provision of the Services will commence, as specified in the Purchase Order.

Confidential Information means any technical, scientific, commercial, financial or other information of, about or in any way related to, the client, including any information designated by the client as

confidential, which is disclosed, made available, communicated or delivered to the Supplier, but excludes information which:

(a) is in or which subsequently enters the public domain, other than as a result of a breach of an obligation of confidentiality;

(b) the Supplier can demonstrate was in its possession prior to the date of the Agreement;

(c) the Supplier can demonstrate was developed by it independently of any disclosures previously made by the client;

(d) is lawfully obtained by the Supplier on a non-confidential basis from a person who is not bound by a confidentiality agreement with the client or otherwise prohibited from disclosing the information to the Supplier; or

(e) is required to be disclosed pursuant to Law, court order or other legal process.

Contract Materials means any materials (including any Intellectual Property) which the Supplier creates (whether alone or jointly with any other person) in performing the Services.

Data means all data, information, text, drawings, statistics, analysis and other materials embodied in any form which is:


(a) supplied by or on behalf of the client in connection with this Agreement (Input Data); or
(b) generated, placed, stored, processed, retrieved, printed, accessed or produced utilising the Input Data, the Services or the deliverables.

Fees mean a fixed fee payable to the Supplier for the provision of the Services, as specified in the Agreement.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Health Privacy Principles means the health privacy principles set out in the Health Records Act 2001 (Vic).

IBAC means the commission established under the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) and includes any other client that may, from time to time, perform the functions of the commission.

Information Privacy Principles has the meaning given in the Privacy and Data Protection Act 2014 (Vic).

Insolvency Event means, in relation to the Supplier, any of the following:

(a) anything that reasonably indicates that there is a significant risk that the Supplier is or will become unable to pay debts as they fall due;
(b) a step being taken to have a receiver, receiver and manager, liquidator or provisional liquidator appointed to the Supplier or any of its assets; or
(c) the Supplier ceasing, or indicating that it is about to cease, carrying on business.

Intellectual Property Rights means all intellectual property rights at any time recognised by law, including all present and future copyright, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, trade secrets and know-how, registered designs, circuit layouts, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Laws means:

(a) any statute, regulation or subordinate legislation of the Commonwealth of Australia, the State or local or other government in force in the State of Victoria, irrespective of where enacted; and
(b) lawful requirements of any government or government department or other body or a governmental, semi-governmental, judicial, municipal, statutory or public entity or authority (including a statutory authority or a State-owned enterprise), a self-regulatory authority established under statute or a stock exchange (wherever created or located or a person (whether autonomous or not) who is charged with the administration of a law.

Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth) and includes a right of a similar nature that is conferrable by statute, and that exists or comes into existence anywhere in the world.

Overdue Amount means an amount (or part thereof) that:

(a) is not, or is no longer, disputed;
(b) is due and owing under a tax invoice (as defined in the GST Act), properly rendered by the Supplier in accordance with this Agreement; and
(c)which has been outstanding for more than 30 days, or if clause 5 applies, 10 Business Days from the date of receipt of the correctly rendered tax invoice (or the date that the amount ceased to be disputed, as the case may be).

Personnel of a party includes the officers, employees, agents, contractors and sub-contractors of that party.

Pre-Existing Intellectual Property means all materials owned by or licensed to a party as at the date of the Agreement or developed by or on behalf of a party independently of the Agreement.

Protective Data Security Standards means any standard issued under Part 4 of the Privacy and Data Protection Act 2014 (Vic) and any policies or protocols issued by the client to ensure compliance with those standards.

Purchase Order means any form of order or purchase issued by the client for the provision of Services, made under or incorporating these General conditions for the provision of services.

Public Sector Employee has the same meaning as in section 4(1) of the Public Administration Act 2004 (Vic).

Rates means the monetary amount (whether charged on an hourly, daily, weekly or other time-related basis) payable to the Supplier for the provision of the Services, as specified in the Purchase Order.

Services means the services, and includes any deliverables provided as part of the services, specified in the Purchase Order and as provided under this Agreement.

State means the Crown in right of the State of Victoria.

Supplier means the entity supplying the Services under the Agreement.

Supplier Code of Conduct means the Code of Conduct issued by the Victorian Government for suppliers providing goods or services to the Victorian Government (as amended from time to time).

Term means the duration of this Agreement from the Commencement Date to the Completion Date or otherwise as extended in accordance with clause 1(b).

Victorian Public Entity means:

(a) a public sector body as defined in section 4 of the Public Administration Act 2004 (Vic);
(b) a statutory corporation, a State owned company, a State body or a State business corporation as those terms are defined in the State Owned Enterprises Act 1992 (Vic);
(c) a "Council" as defined in the Local Government Act 1989 (Vic); or
(d) an entity which receives the majority of its funding from any of the entities listed in paragraphs (a) to (c) or any entity under the control of any of the entities listed in paragraphs (a) to (c).

Victorian Public Sector Commission (VPSC) Code of Conduct means the Code of Conduct for Victorian Public Sector Employees 2015 issued by the Public Sector Commission pursuant to section 61 of the Public Administration Act 2004 (Vic).

15. Interpretation

Unless expressed to the contrary, in this Agreement:
(a) words in the singular include the plural and vice versa;
(b) any gender includes the other genders;
(c) if a word or phrase is defined its other grammatical forms have corresponding meanings;
(d) 'includes’ and 'including' are not words of limitation;
(e) no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it;
(f) the obligations of the Supplier, if more than one person, under the Agreement are joint and several and each person constituting the Supplier acknowledges and agrees that it will be causally responsible for the acts and omissions, including breaches of the Agreement, of the other as if those acts or omissions were its own;
(g) the rights of the Supplier, if more than one person, under the Agreement, including the right to payment, jointly benefit each person constituting the Supplier (and not severally or jointly and severally); and
(h) a reference to:
(i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
(ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
(iii) any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision; and
(iv) a party or parties is a reference to the client and the Supplier (as the case requires).