schedule 2 - draft contract - 06-acma016

8/8/2019 Schedule 2 - Draft Contract - 06-Acma016

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CONTRACT FOR PROVISION OF SERVICES

BETWEEN THE

COMMONWEALTH OF AUSTRALIArepresented by the

Chief Executive Officer of theAustralian Communications and Media Authority

ABN 55 386 169 386

AND

[Insert COMPANY NAME]ACN [ ]ABN [ ]

in relation to the provision of Services for the

[NAME OF SERVICE]

SERVICE PROVIDER COMMISSION No. 05/ACMA [ ]


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TABLE OF CLAUSES

1. INTERPRETATION

2. PROVISION OF SERVICES

3. FEES, ALLOWANCES AND ASSISTANCE

4. TAXES, DUTIES AND GOVERNMENT CHARGES

5. ENTIRE AGREEMENT AND VARIATION

6. SUBCONTRACTING

7. SPECIFIED PERSONNEL

8. LIAISON

9. ACMA MATERIAL

10. INTELLECTUAL PROPERTY IN CONTRACT MATERIAL

11. DISCLOSURE OF INFORMATION

12. PROTECTION OF PERSONAL INFORMATION

13. MORAL RIGHTS

14. ACCESS TO ACMA PREMISES AND COMPLIANCE WITH ACMA POLICIES

15. INDEMNITY

16. INSURANCE

17. CONFLICT OF INTEREST

18. ACCESS TO CONTRACTORS PREMISES

19. AUDITOR-GENERAL

20. NEGATION OF EMPLOYMENT, PARTNERSHIP AND AGENCY

21. TERMINATION AND REDUCTION

22. DEFAULT

23. WAIVER

24. COMPLIANCE WITH LAW

25. ENVIRONMENTAL PROTECTION

26. HAZARDOUS SUBSTANCES

27. DISPUTE RESOLUTION

28. ASSIGNMENT AND NOVATION29. SEVERABILITY

30. APPLICABLE LAW

31. NOTICES

32. SURVIVAL

SCHEDULES

Schedule 1. OBLIGATIONS AND SERVICES TO BE PERFORMED

Schedule 2. DEED OF CONFIDENTIALITY, PRIVACY AND OWNERSHIP OF

INTELLECTUAL PROPERTY RIGHTS (if required)

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THIS CONTRACT is made on the ........................ of ........................ 2005

BETWEEN

The COMMONWEALTH OF AUSTRALIA represented by the Chief Executive Officerof the Australian Communications and Media Authority, a body corporate established

under theAustralian Communications and Media Authority Act 2005, ABN 55 386 169386, (the Commonwealth)

AND

[CONTRACTORS NAME], whose registered office is at [CONTRACTORSADDRESS], [ABN, ACN] (the Contractor)

WHEREAS:

A. The Commonwealth, for the benefit of ACMA, requires the provision of certainServices for the purposes of [BRIEF DESCRIPTION] (the Services).

B. The Contractor has fully informed itself on all aspects of the work required to be

performed and has submitted a proposal and quotation dated [INSERT DATE].

C. The Commonwealth has agreed to accept the Contractor's offer dated [INSERTDATE] to provide the Services for the benefit of ACMA upon the terms and conditionscontained in this Contract.

NOW IT IS HEREBY AGREED as follows:

1. INTERPRETATION

1.1 In this Contract unless the contrary intention appears:

ACMA means the Australian Communications and Media Authority;

ACMA Material means any Material provided by ACMA to the Contractor for thepurposes of this Contract or which is copied or derived from Material so provided;

Confidential Information means information that:

(a) is by its nature confidential;

(b) is designated by ACMA as confidential; or

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

but does not include information which:

(d) is or becomes public knowledge, other than by breach of this Contract or by

any other unlawful means;(e) is in the possession of the Contractor without restriction in relation to

disclosure before the date of receipt from ACMA; or

(f) has been independently developed or acquired by the Contractor;

Contract means this document, together with any Schedules and Annexures;

Contract Material means all Material:

(a) brought into existence for the purpose of performing the Services;

(b) incorporated in, supplied or required to be supplied along with the Materialreferred to in paragraph (a); or

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(c) copied or derived from Material referred to in paragraphs (a) or (b);

Contractor shall, where the context so admits, include the officers, employees, agents andSubcontractors to the Contractor;

Effective Date means the date on which this Contract is signed by the parties, or if signed

on separate days, on the date of the last signature;GST has the meaning given in theA New Tax System (Goods and Services Tax) Act1999;

Intellectual Property includes all copyright and neighbouring rights, all rights in relationto inventions (including patent rights), plant varieties, registered and unregisteredtrademarks (including service marks), registered designs, Confidential Information(including trade secrets and know how) and circuit layouts, and all other rights resultingfrom intellectual activity in the industrial, scientific, literary or artistic fields;

Material includes documents, software, goods, equipment, information and data storedby any means;

Personal Information means information or an opinion (including information or anopinion forming part of a database), whether true or not, and whether recorded in amaterial form or not, about a natural person whose identity is apparent, or can reasonably

be ascertained, from the information or opinion;

Project Officer means the person for the time being holding, occupying or performingthe duties of a position in ACMA specified in Item G of Schedule 1 or any other personspecified by the Project Officer in writing and notified to the Contractor;

Services means the services to be performed or provided by the Contractor as describedin Item A of Schedule 1, and includes the provision to ACMA of the Contract Materialspecified in Item B of Schedule 1;

Specified Personnel means the personnel included in Item E of Schedule 1 as personnelrequired to undertake the Services or part of the work constituting the Services;

Subcontractor means any person that, for the purposes of this Contract, furnishesServices directly to the Contractor or indirectly to the Contractor through another person.

1.2 In this Contract, unless the contrary intention appears:

(a) Words importing a gender include any other gender.

(b) Words in the singular number include the plural and words in the pluralnumber include the singular.

(c) Clause headings in this Contract are for convenient reference only and have noeffect in limiting or extending the language of the provisions to which theyrefer.

(d) A reference to a person includes a partnership and a body whether corporate orotherwise; and where the context permits, shall include a reference to the

persons executors, administrators, successors (including but not limited to,persons taking by novation) and permitted assigns.

(e) A reference to a clause or subclause is a reference to a clause or subclause ofthis Contract, and reference to an Item is a reference to an Item of theSchedules to this Contract.

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(f) A reference to a Schedule (or Annexure) is a reference to a Schedule (orAnnexure) to this Contract, and includes such Schedule (or Annexure) asamended or replaced from time to time by agreement in writing between the

parties.

(g) 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.

(h) Schedules and Annexures, if any, form part of this Contract. In the event ofany conflict between the terms and conditions contained in the clauses of thisContract and any part (Item) of the Schedules and Annexures, if any, then theterms and conditions of the clauses shall take precedence.

(i) Where a conflict arises between any part of the Schedule and any part of anAnnexure, the Schedule prevails.

(j) All monetary references are references to Australian currency.

(k) A reference to any statute or other legislation (whether primary or subordinate)

is to a statute or other legislation of the Commonwealth or a State or Territoryof Australia as amended or replaced from time to time.

(l) A provision of this Contract shall not be construed to the disadvantage of aparty solely on the basis that the party proposed that provision.

2. PROVISION OF SERVICES

2.1 The Contractor shall perform the Services (including the preparation of ContractMaterial) in accordance with and described in Item A of Schedule 1 at a highstandard of industry practice and to the satisfaction of ACMA.

2.2 The Contractor warrants that:

(a) it, its agents and Subcontractors have the necessary expertise, experience,capacity and facilities required to perform its obligations and responsibilities inaccordance with this Contract, and will use due care and skill in the

performance of the Services;

(b) the Services will be fit for the purpose for which they are intended;

(c) any Materials the Contractor uses to perform the Services will be free fromdefects in design, performance and workmanship; and

(d) all work performed under this Contract will be carried out and completed inthe most cost-effective manner, using materials suitable for the purpose, and in

accordance with commercially recognised industry procedures, requirementsand other standard practices including the relevant Australian (or equivalentinternational) standards.

2.3 The Contractor shall perform the Services during the term specified in Item C ofSchedule 1, and at the times and in the manner specified in Item C of Schedule 1.

2.4 For each day that the Contractor is engaged in providing the Services, theContractor will keep an accurate record of the number of hours worked, and thematters worked on, in a form to allow the Contractor to prepare accurate invoices,and to allow ACMA to reconcile and check invoices. The Contractor will makecopies of those records available to the Project Officer on request.

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3. FEES, ALLOWANCES AND ASSISTANCE

3.1 The Commonwealth shall:

(a) pay to the Contractor the fees specified in Item D of Schedule 1;

(b) pay the allowances and meet the costs specified in Item D of Schedule 1; and

(c) provide the facilities and assistance specified in Item D of Schedule 1;

in accordance with the terms of this Contract.

3.2 Where Item D of Schedule 1 does not provide that the Contractor is to be paid byprogressive instalments, the Contractor shall be paid monthly in arrears.

3.3 The fees, and any allowances and costs, will be paid only after receipt of acorrectly prepared invoice. An invoice is correctly prepared if:

(a) the amount claimed is in respect of Services actually performed and costs andexpenses actually incurred;

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

(c) the invoice sets out the basis of calculation of the fees, allowances and costscharged in that invoice;

(d) a claim for reimbursement of expenditure included in any costs or allowancesis supported by receipts which clearly identify those costs or allowances;

(e) the invoice sets out the title of the Contract, the Service Provider CommissionNumber, and the name of the Project Officer; and

(f) the invoice conforms to any other requirements specified in Item D ofSchedule 1.

3.4 Unless the Project Officer rejects any claim for payment which is not in accordancewith this Contract, payments will be due and payable within the number of daysafter receipt of a correctly prepared invoice specified in Item D of Schedule 1.

3.5 The obligation of the Commonwealth to make a payment under this clause 3 issubject to the performance of the Services to the satisfaction of ACMA. TheCommonwealth shall be entitled, in addition to any other right it may have, todelay payment or any instalment of fees or allowances, until the Contractor hascompleted, to the satisfaction of ACMA, that part of the Services to which the

payment relates.

3.6 If an invoice is found to have been incorrectly rendered after payment by theCommonwealth, any underpayment or over-payment shall be recoverable by orfrom the Contractor, as the case may be, and without limiting recourse to otheravailable remedies, may be offset against any amount subsequently due from theCommonwealth to the Contractor.

3.7 The preferred method of payment under this contract is electronic funds transfer byway of direct credit to the Contractors Nominated Bank Account. The Contractormust maintain a Contractors Nominated Bank Account for the purposes ofreceiving electronic funds transfer for payment by the Commonwealth under thisContract

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4. TAXES, DUTIES AND GOVERNMENT CHARGES

4.1 All taxes, duties and charges imposed or levied in Australia or overseas inconnection with the Services shall be borne by the Contractor or its Subcontractor,as the case requires. The fees and charges specified in Item D of Schedule 1include the GST (Goods and Services Tax) for Services to be provided under this

Contract which are taxable supplies within the meaning of theA New Tax System(Goods and Services Tax) Act 1999 (the GST Act).

4.2 The Contractor agrees to issue the Commonwealth with a tax invoice in accordancewith the GST Act in relation to all taxable supplies made for the benefit of ACMAunder this Contract.

5. ENTIRE AGREEMENT AND VARIATION

5.1 This Contract constitutes the entire agreement between the parties and supersedesall communications, negotiations, arrangements and agreements, whether oral orwritten, between the parties with respect to the subject matter of this Contract.

5.2 The Contractor acknowledges that it does not rely upon any representation,warranty, condition or other conduct on the part of the Commonwealth or ACMAor any person purporting to act on behalf of the Commonwealth or ACMA inentering into this Contract other than any express warranty or condition containedin this Contract.

5.3 No agreement or understanding varying or extending this Contract (including inparticular the scope of the Services described in Item A of Schedule 1) shall belegally binding upon either party unless it is in writing and signed by both parties.

6. SUBCONTRACTING

6.1 The Contractor shall not, without the prior written approval of the Commonwealth,subcontract the performance of the whole or any part of the Services. In givingwritten approval, the Commonwealth may impose such terms and conditions as itthinks fit.

6.2 The Contractor shall be fully responsible for the performance of the Servicesnotwithstanding that the Contractor has subcontracted the performance of any partof those Services.

6.3 Despite any approval given by the Commonwealth, the Contractor shall exercisecare in selection of a Subcontractor and shall be responsible for ensuring thesuitability of a Subcontractor for the proper performance of the Services proposed

to be carried out by the Subcontractor, and for ensuring that the performance of theServices meets the requirements of this Contract.

7. SPECIFIED PERSONNEL

7.1 The Contractor shall ensure that where the names of Specified Personnel areincluded in Item E of Schedule 1, those persons will undertake work in respect ofthe Services in accordance with the terms of this Contract.

7.2 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; and

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(c) have a high level of professionalism in the performance of the Services;

are engaged by the Contractor to perform the Services.

7.3 Where Specified Personnel or any other personnel who perform the Services areunable to undertake work in respect of the Services, the Contractor shall notify

ACMA immediately. The Contractor shall, if so requested by ACMA on behalf ofthe Commonwealth, provide replacement personnel acceptable to ACMA at noadditional charge and at the earliest opportunity. If the Contractor does not provideacceptable replacement personnel with suitable skills within a reasonable period,the Commonwealth reserves the right to terminate this Contract in accordance withthe provisions of clause 22.

7.4 The Contractor acknowledges and agrees that ACMA on behalf of theCommonwealth may, at its absolute discretion, give notice requiring the Contractorto remove personnel (including Specified Personnel) from work in respect of theServices. The Contractor shall, at its own cost, promptly arrange for the removal ofsuch personnel from work in respect of the Services and their replacement with

personnel acceptable to ACMA.

7.5 If the Contractor is unable to provide acceptable replacement personnel, theCommonwealth may terminate this Contract in accordance with the provisions ofclause 22.

7.6 The Contractor acknowledges and agrees that if ACMA on behalf of theCommonwealth advises the Contractor that personnel carrying out work or

performing duties in respect of the Services (including Specified Personnel) will berequired to:

(a) enter secure areas in ACMAs buildings or places;

(b) have access to, or be responsible for the physical custody of, ConfidentialInformation or official, classified, sensitive or commercial information; or

(c) hold a particular kind of security clearance;

the Contractor shall provide to ACMA such information, which the Contractor islegally entitled to provide, about such persons as ACMA from time to timerequests for the purpose of allowing ACMA to undertake necessary investigationsof those persons. ACMA shall carry out its investigations in an expeditiousmanner and shall on behalf of the Commonwealth notify the Contractor in writingof:

(i) the names of the personnel authorised to carry out work or perform duties in

respect of the Services (in this clause 7 referred to as an authorised person),the type and level of clearance given in respect of each of those persons andthe period during which those clearances will be effective; and

(ii) the names of the personnel refused to be authorised to carry out work orperform duties in respect of the Services;

and the Contractor shall sign a copy of that notice, and return it to ACMA as soonas possible as acknowledgment of the contents.

7.7 The Contractor shall advise ACMA promptly in writing of any change in thecircumstances of an authorised person that, in the Contractors reasonable opinion,is likely to affect ACMAs assessment of the person as an authorised person.

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7.8 The Contractor acknowledges and agrees that ACMA on behalf of theCommonwealth may at any time and without coming under any liabilitywhatsoever, withdraw, limit or suspend its authorisation in respect of a particularauthorised person and shall so notify the Contractor. In addition, the Contractoracknowledges and agrees that ACMA shall not be bound to give any reasons for

any such withdrawal, limitation or suspension, and shall not be in any way liable inrespect of any claim, action or demand made by any such person for any lossincluding but not limited to wages or damages and the Contractor shall indemnifyand keep indemnified the Commonwealth and ACMA against every such claim,action or demand. The Contractor shall also, if requested by ACMA, providereplacement personnel acceptable to ACMA at no additional charge and at theearliest opportunity.

8. LIAISON

8.1 The Project Officer is responsible for the administration of this Contract on behalfof the Commonwealth and for the benefit of ACMA. The Contractor shall liaise

with, report to and comply with any direction of the Project Officer, in accordancewith this Contract, as reasonably required by the Project Officer during the periodof this Contract.

8.2 The Contractor shall, on or before the Effective Date, nominate a person who hasauthority to receive and sign notices and written communications for theContractor under this Contract and accept any request or direction in relation to theServices.

8.3 The Contractor must act in good faith at all times and give to the Commonwealthand ACMA such assistance and co-operation as the Commonwealth or ACMAreasonably requests in connection with the operation of this Contract.

9. ACMA MATERIAL

9.1 The Commonwealth agrees to provide, and shall ensure that ACMA provides,ACMA Material to the Contractor as specified in Item B of Schedule 1 for Contract

purposes. The Contractor shall be responsible for the reasonable care of ACMAMaterial from the date the Contractor receives such ACMA Material.

9.2 Ownership of all ACMA Material remains vested at all times in theCommonwealth, but the Commonwealth grants to the Contractor a royalty-free,non-exclusive licence to use, reproduce and adapt ACMA Material for the purposesof this Contract.

9.3 Upon the expiration or earlier termination of this Contract, the Contractor shallreturn to ACMA all ACMA Material remaining in its possession.

9.4 Subclauses 9.1 to 9.3 apply subject to any stipulation to the contrary in Item B ofSchedule 1.

9.5 The Contractor shall ensure that ACMA Material is used, copied, supplied orreproduced only for the purposes of this Contract. The Contractor agrees toestablish and maintain procedures to secure all ACMA Material against loss andunauthorised access, use, modification or disclosure.

9.6 The Contractor shall use ACMA Material strictly in accordance with anyconditions or restrictions specified in Item B of Schedule 1, or notified from timeto time in writing by ACMA.

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10. INTELLECTUAL PROPERTY IN CONTRACT MATERIAL

10.1 Subject to this clause 10, Intellectual Property in all Contract Material vests or willvest in the Commonwealth.

10.2 Subclause 10.1 does not affect the ownership of Intellectual Property in any

Material owned by the Contractor, or a Subcontractor, existing at the EffectiveDate which is specified in Item B of Schedule 1. However, the Contractor grantsto the Commonwealth and ACMA, or shall procure from a Subcontractor, on

behalf of the Commonwealth and ACMA, a permanent, irrevocable, royalty-free,non-exclusive licence (including a right of sublicence) to use, reproduce, adapt andexploit such Material anywhere in the world. Notwithstanding Part VII of theCopyright Act 1968, publication of the Material in accordance with this licenceshall not affect such ownership.

10.3 If requested by the Commonwealth to do so, the Contractor shall bring intoexistence, sign, execute or otherwise deal with any document which may benecessary or desirable to give effect to this clause 10.

10.4 The Contractor warrants that it is entitled, or will be entitled at the relevant time, todeal with the Intellectual Property in any Contract Material in the manner providedfor in this clause 10.

10.5 The Contractor shall at all times indemnify and hold harmless the Commonwealthand ACMA, its officers, employees and agents (in this subclause referred to as'those indemnified') from and against any loss (including legal costs and expenseson a solicitor/own client basis) or liability incurred or suffered by any of thoseindemnified arising from any claim, suit, demand, action or proceeding by any

person in respect of any infringement of Intellectual Property by the Contractor, itsofficers, employees, agents or Subcontractors in connection with the performance

of the Services or the use by the Commonwealth or ACMA of the ContractMaterial.

10.6 The indemnity referred to in subclause 10.5 shall survive the expiration ortermination of this Contract.

10.7 The Contractor agrees to establish and maintain procedures to secure the ContractMaterial in its possession against loss and unauthorised access, use, modification ordisclosure.

10.8 Upon the expiration or earlier termination of this Contract, the Contractor shalldeliver to ACMA all Contract Material remaining in its possession.

11. DISCLOSURE OF INFORMATION

11.1 The Contractor shall not, without the prior written approval of the Commonwealthor ACMA (as the case may be), disclose to any person other than theCommonwealth or ACMA, any Confidential Information contained in ACMAMaterial or Contract Material. The Contractor agrees that in giving writtenapproval, the Commonwealth or ACMA may impose such terms and conditions asit thinks fit.

11.2 The Commonwealth shall not, and shall ensure that ACMA does not, without theprior written approval of the Contractor, disclose to any person other than theContractor, any information which is confidential to the Contractor.

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11.3 The Commonwealth may at any time require the Contractor to give and to arrangefor its officers, employees, agents and Subcontractors engaged in the performanceof the Services to give written undertakings, in a form required by theCommonwealth (substantially in accordance with Schedule 2), relating to the nondisclosure of such Confidential Information. The Contractor shall promptly arrange

for all such undertakings to be given.11.4 The obligations on the parties under this clause11 will not be taken to have been

breached to the extent that Confidential Information:

(a) is disclosed by a party to its personnel solely in order to comply withobligations, or to exercise rights, under this Contract;

(b) is disclosed to a partys internal management personnel solely to enableeffective management or auditing of Contract-related activities;

(c) is disclosed by the Commonwealth or ACMA to the responsible Minister;

(d) is disclosed by the Commonwealth or ACMA, in response to a request by a

House or a Committee of the Parliament of the Commonwealth of Australia;(e) is shared by ACMA within ACMAs organisation, or with another government

body or agency, where this serves the Commonwealths legitimate interests;

(f) is authorised or required by law to be disclosed; or

(g) is in the public domain otherwise than due to a breach of this clause 11.

11.5 Where a party discloses Confidential Information to another person pursuant tosubclause 11.4, the disclosing party must notify the receiving person that theinformation is confidential.

11.6 In the circumstances referred to in paragraphs (a), (b) and (e) of subclause 11.4, the

disclosing party agrees not to provide the information unless the receiving personagrees to keep the information confidential.

11.7 This clause 11 shall survive the expiration or termination of this Contract.

12. PROTECTION OF PERSONAL INFORMATION

12.1 This clause 12 applies only to the extent that the Contractor deals with PersonalInformation in providing the Services under this Contract.

12.2 In this clause 12, the following terms have the same meaning as they have in thePrivacy Act 1988 (the Privacy Act):

agency;approved privacy code or APC;

contracted service provider;

Information Privacy Principle or IPP;

National Privacy Principle or NPP.

12.3 The Contractor acknowledges that it is a contracted service provider and agrees, inproviding Services under this Contract:

(a) to use or disclose Personal Information obtained in the course of providingServices under this Contract only for the purposes of this Contract;

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(b) to carry out and discharge the obligations contained in the IPPs as if it were anagency;

(c) not to do any act or engage in any practice which, if done or engaged in by anagency, would be a breach of an IPP;

(d) not to use or disclose Personal Information in breach of section 16F [Directmarketing] of the Privacy Act (where applied to the Contractor), unless thatuse or disclosure is explicitly required under this Contract;

(e) not to engage in an act or practice that would breach a NPP (particularly NPPs7 to 10) or an APC (where applied to the Contractor), unless that act or

practice is explicitly required under this Contract;

(f) to comply with any request under section 95C of the Privacy Act (relating todisclosure of any provisions of this Contract that are inconsistent with a NPPor an APC binding on a party to this Contract);

(g) to notify ACMA immediately if the Contractor becomes aware of a breach or

possible breach of any of the obligations contained in, or referred to in, thisclause12, whether by the Contractor or its personnel;

(h) to comply with any directions, guidelines, determinations or recommendationsof the Privacy Commissioner to the extent that they relate to the handling ofPersonal Information in the course of providing Services under this Contract;and

(i) to ensure that all personnel required to deal with Personal Information for thepurposes of this Contract are made aware of the obligations of the Contractorset out in this clause12.

12.4 The Contractor agrees to ensure that any subcontract entered into by the Contractor

for the purpose of fulfilling its obligations under this Contract imposes on theSubcontractor the same obligations that the Contractor has under this clause 12(including this requirement in relation to subcontracts).

12.5 The Contractor shall at all times indemnify and hold harmless the Commonwealthand ACMA, its officers, employees and agents (in this subclause referred to as'those indemnified') from and against any loss (including legal costs and expenseson a solicitor/own client basis) or liability incurred or suffered by any of thoseindemnified arising from any claim, suit, demand, action or proceeding by any

person in respect of any misuse of Personal Information or any disclosure in breachof an obligation of confidence by the Contractor, its officers, employees, agents or

Subcontractors whether arising under the Privacy Act or otherwise.12.6 This clause 12 shall survive the expiration or termination of this Contract.

13. MORAL RIGHTS

13.1 For the purposes of this clause13, Permitted Acts means any of the followingclasses or types of acts or omissions:

(a) using, reproducing, adapting or exploiting all or any part of the ContractMaterial, with or without attribution of authorship;

(b) supplementing the Contract Material with any other Material;

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(c) using the Contract Material in a different context to that originally envisaged;and

(d) the acts or omissions specified in Item B in Schedule 1;

but does not include false attribution of authorship.

13.2 Where the Contractor is a natural person and the author of the Contract Material,he or she consents to the performance of the Permitted Acts by ACMA or any

person claiming under or through ACMA.

13.3 If subclause 13.2 does not apply, the Contractor agrees:

(a) to obtain from each author a written consent which extends directly orindirectly to the performance of the Permitted Acts by ACMA or any personclaiming under or through ACMA (whether occurring before or after theconsent is given); and

(b) on request to provide the executed original of any such consent to ACMA.

13.4 The Contractor acknowledges that its attention has been drawn to ACMAs generalpolicies or practices regarding Moral Rights as specified in Item B of Schedule 1.

13.5 This clause 13 does not apply to any ACMA Material incorporated in the ContractMaterial.

14. ACCESS TO ACMA PREMISES AND COMPLIANCE WITH ACMAPOLICIES

14.1 The Commonwealth shall, and shall ensure that ACMA does, during the period ofthis Contract, provide access to ACMA premises for persons approved under clause7, as reasonably necessary for the Contractors performance of its obligations under

this Contract.14.2 The Commonwealth may, or ACMA on behalf of the Commonwealth may, by

notice to the Contractor, withdraw access rights to any ACMA premises, at anytime, for any period.

14.3 The Contractor must, when using ACMAs premises or facilities, comply with allreasonable directions and ACMA procedures relating to occupational health(including ACMAs smoke free work place policy), safety and security in effect atthose premises or in regard to those facilities, as notified by ACMA or as mightreasonably be inferred from the use to which the premises or facilities are being

put.

14.4 The Contractor must comply with its obligations, and ensure that anySubcontractor complies with its obligations, if any, under the Equal Opportunity

for Women in the Workplace Act 1999 and must not enter into a subcontract underthis Contract with a Subcontractor named by the Director of Affirmative Action asan employer currently not complying with that Act.

14.5 The Contractor must comply with all reasonable and appropriate securityrequirements relating to the custody of, and access to, Material wherever suchMaterial is held.

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15. INDEMNITY

15.1 Subject to the provisions of this Contract, the Contractor shall at all timesindemnify and hold harmless the Commonwealth and ACMA, its officers,employees and agents (in this subclause referred to as 'those indemnified) fromand against:

(a) any loss (including legal costs and expenses on a solicitor/own client basis), orliability, suffered or reasonably incurred or suffered by any of thoseindemnified arising from any claim, suit, demand, action or proceeding by any

person against any of those indemnified; and

(b) any loss or damage to property of the Commonwealth (including ACMAMaterial);

where such loss or liability was caused by any breach of this Contract, or anywilful, unlawful or negligent act or omission of the Contractor, its officers,employees, agents or Subcontractors in connection with this Contract.

15.2 The Contractors liability to indemnify the Commonwealth and ACMA undersubclause 15.1 shall be reduced proportionally to the extent that any act oromission of the Commonwealth or ACMA or its officers, employees or agentscontributed to the loss or liability.

15.3 The right of the Commonwealth and ACMA to be indemnified under this clause 15is in addition to, and not exclusive of, any other right, power or remedy provided

by law.


16. INSURANCE

16.1 The Contractor shall, for so long as any obligations remain in connection with thisContract, effect and maintain insurance as specified in Item F of Schedule 1.

16.2 Whenever requested, the Contractor shall provide the Commonwealth with a copyof any insurance policy effected in accordance with subclause 16.1 and a certificateof currency.

17. CONFLICT OF INTEREST

17.1 In this clause 17, conflict means any matter, circumstance, interest or activityaffecting the Contractor (including its personnel) which may or may appear toimpair the ability of the Contractor to provide the Services to the Commonwealth,

for the benefit of ACMA, diligently and independently.17.2 The Contractor warrants that, to the best of its knowledge after making diligent

inquiry, at the date of signing this Contract no conflict with the interests of ACMAexists or is likely to arise in the performance of its obligations under this Contract

by itself or by any of its officers, employees, agents or Subcontractors.

17.3 If during the term of this Contract a conflict of interest arises, or appears likely toarise, the Contractor undertakes to notify ACMA immediately in writing and totake such steps as ACMA may reasonably require to resolve or otherwise deal withthe conflict. If the Contractor fails to notify ACMA or is unable or unwilling toresolve or deal with the conflict as required, the Commonwealth may terminate this

Contract in accordance with the provisions of clause 22.

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17.4 The Contractor shall not, and shall ensure that any officer, employee, agent orSubcontractor of the Contractor does not, engage in any activity or obtain anyinterest during the course of this Contract that is likely to conflict with or restrictthe Contractor in providing the Services to the Commonwealth, for the benefit ofACMA, fairly and independently.

18. ACCESS TO CONTRACTORS PREMISES

18.1 The Contractor shall at all reasonable times give to the Project Officer or to anypersons authorised in writing by the Project Officer, access to premises occupiedby the Contractor where the Services are being undertaken and shall permit thosepersons to inspect and copy documentation and records, however stored, in theContractors possession or control including any ACMA Material, ContractMaterial or other Material relevant to the Services.

18.2 The Contractor shall ensure that the provisions of any subcontract provide to theProject Officer, and persons authorised by the Project Officer, similar access toSubcontractors premises and records in connection with the provision of theServices.

19. AUDITOR-GENERAL

19.1 The Auditor-General, or a delegate of the Auditor-General, may for the purpose ofperforming the Auditor-Generals statutory functions, at reasonable times and ongiving reasonable notice to the Contractor:

(a) require the provision by the Contractor, its employees, agents orSubcontractors, of records and information which are directly related to thisContract;

(b) have access to the premises of the Contractor for the purpose of inspecting andcopying documentation and records, however stored, in the custody or underthe control of the Contractor, its employees, agents or Subcontractors, whichare directly related to this Contract; and where relevant

(c) inspect any ACMA Material held on the premises of the Contractor.

19.2 The Contractor shall ensure that any subcontract entered into for the purposes ofthis Contract contains an equivalent clause granting the rights specified in thisclause 19.

19.3 This clause 19 applies for the term of this Contract and for a period of five yearsfrom the date of expiration or termination of this Contract. The Contractor must

ensure that any records and documentation related to this Contract are maintainedfor a similar period.

20. NEGATION OF EMPLOYMENT, PARTNERSHIP AND AGENCY

20.1 The Contractor shall not represent itself, and shall ensure that its officers,employees, agents and Subcontractors do not represent themselves, as being anofficer, employee, agent or partner of the Commonwealth or ACMA, or asotherwise able to bind or represent the Commonwealth or ACMA.

20.2 The Contractor shall not by virtue of this Contract be or for any purpose be takento be an officer, employee, agent or partner of the Commonwealth or ACMA, or as

having any power or authority to bind or represent the Commonwealth or ACMA.

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21. TERMINATION AND REDUCTION

21.1 The Commonwealth may, at any time by written notice, terminate this Contract, inwhole or in part. If this Contract is so terminated, the Commonwealth shall beliable only for:

(a) payments under the payment provisions of this Contract for services renderedbefore the effective date of termination; and

(b) subject to subclauses 21.3 and 21.4 any reasonable costs incurred by theContractor and directly attributable to the termination or partial termination ofthis Contract.

21.2 Upon receipt of a notice of termination, the Contractor shall:

(a) stop work as specified in the notice;

(b) take all available steps to minimise loss resulting from that termination and toprotect ACMA Material and Contract Material; and

(c) continue work on any part of the Services not affected by the notice.21.3 In the event of partial termination, the Commonwealths liability to pay fees

specified in Item D of Schedule 1 shall, in the absence of agreement to thecontrary, abate proportionately to the reduction in the Services.

21.4 The Commonwealth shall not be liable to pay compensation in an amount whichwould, in addition to any amounts paid or due, or becoming due, to the Contractorunder this Contract, together exceed the fees specified in Item D of Schedule 1.The Contractor shall not be entitled to compensation for loss of prospective profits.

22. DEFAULT

22.1 If either party is in default under this Contract on account of the failure to performor observe any obligation or undertaking to be performed or observed on its partunder this Contract, the party not in default may, subject to subclause 22.2, bynotice in writing to the other party, terminate this Contract in whole or in partwithout prejudice to any right of action or remedy which has accrued or which mayaccrue in favour of either party.

22.2 Where the default is capable of being remedied, a party shall not exercise its rightsof termination under subclause 22.1 unless it has first given to the other partynotice in writing specifying the default and requiring the other party to remedy itwithin the time (being not less than 10 working days) specified in the notice andthe default is not remedied within the time allowed.

22.3 The Commonwealth may, by notice in writing, terminate this Contract immediately(but without prejudice to any right of action or remedy which has accrued or whichmay accrue in favour of either party) if the Contractor:

(a) being a corporation, comes under one of the forms of external administrationreferred to in Chapter 5 of the Corporations Act 2001, or an order has beenmade for the purpose of placing the corporation under external administration;or

(b) being an individual, becomes bankrupt or enters into a scheme of arrangementwith creditors.

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at work to harm the health or safety of persons in or near the workplace, asidentified by the National Occupational Health and Safety Commission.

26.2 The Contractor must not use in the performance of the Services, nor introduce orstore at ACMA locations any Hazardous Substance except where necessary for the

performance of this Contract, and after the prior written consent of the Project

Officer, other than those Hazardous Substances approved for use or storage withinan ACMA location by the Project Officer prior to the Effective Date. AnyHazardous Substances which cannot be avoided are to be fully identified to usersand handlers, and the nature and extent of the associated hazard clearly displayed.

26.3 The Contractor must, in respect of each Hazardous Substance for which approvalhas been given pursuant to subclause 26.2:

(a) provide full details to the Project Officer of that substance (including location,protective covering or packaging provided and other relevant details) in theformat reasonably required by the Project Officer;

(b) ensure that all documentation, including (without limitation of generality) thatrelated to operation, maintenance, assembly, shipping and handling, is clearlywritten to identify the presence and nature of the hazard;

(c) ensure that all goods, equipment and materials containing that substance bearappropriate labels which clearly identify the nature of the substance, itsassociated hazards and appropriate safeguards;

(d) comply with all relevant legislation of the Commonwealth or of a State,Territory or local authority and with all industry standards and practices thatrelate to the safe usage, storage, control or disposal of Hazardous Substances;and

(e) be responsible for imposing and enforcing the obligations set out in this clause26 on its Subcontractors, as well as for ensuring the observance of thoseobligations by its servants, employees and agents and those of itsSubcontractors.

26.4 The Contractor must promptly (and no later than 7 days after discovery) advise theProject Officer if it becomes aware of a non-hazardous substance which could besubstituted for a Hazardous Substance without significant detriment to the

performance of the Services.

26.5 In no circumstances may the performance of the Services give rise to the emissionof gases, liquids, solids, electromagnetic radiation, heat or noise which could be

detrimental to personnel, the environment or the operation of other equipment,except where this is consistent with the performance of the Services and is withinnormal tolerances as stipulated in the relevant industry standards.

27. DISPUTE RESOLUTION

27.1 Subject to subclause 27.4, before resorting to external dispute resolutionmechanisms, the parties shall attempt to settle by negotiation any dispute in relationto this Contract including by referring the matter to personnel who may haveauthority to intervene and direct some form of resolution.

27.2 If a dispute is not settled by the parties within 10 working days of one party firstsending to the other party written notice that they are in dispute, the dispute may be

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the subject of court proceedings or may be submitted to some alternative disputeresolution mechanism as may be agreed in writing between the parties.

27.3 Notwithstanding the existence of a dispute, each party shall continue to perform itsobligations under this Contract.

27.4 A party may commence court proceedings relating to any dispute arising from thisContract at any time where that party seeks urgent interlocutory relief.


28. ASSIGNMENT AND NOVATION

28.1 The Contractor shall not assign, in whole or in part, its rights and obligations underthis Contract without the prior written approval of the Commonwealth.

28.2 The Contractor shall not consult with any other person or body for the purpose ofentering into an arrangement which will require novation of this Contract withoutfirst consulting the Commonwealth.

28.3 The Commonwealth will not withhold approval of an assignment to a whollyowned subsidiary of the Contractor if:

(a) the proposed assignee is sufficiently capitalised to meet all of the Contractorsobligations under this Contract, including indemnities;

(b) the Specified Personnel continue to provide the Services, subject to the termsof this Contract;

(c) the Contractor guarantees the performance of this Contract by the assignee andany liability on the part of the assignee arising under this Contract;

(d) the proposed assignee fully complies with all criteria applied to the Contractor

as a tenderer for provision of the Services; and

(e) the Contractor provides to the Commonwealth all information reasonablyrequired to determine compliance under this subclause 28.3.

29. SEVERABILITY

29.1 Each provision of this Contract and each part thereof shall, unless the contextotherwise necessarily requires it, be read and construed as a separate and severable

provision or part. If any provision or part thereof is void or otherwiseunenforceable for any reason, then that provision or part (as the case may be) shall

be severed and the remainder shall be read and construed as if the severable

provision or part had never existed.

30. APPLICABLE LAW

30.1 This Contract shall be governed by and construed in accordance with the laws inforce in the Australian Capital Territory, and the parties agree that the Courts ofthat Territory shall have jurisdiction to entertain any action in respect of, or arisingout of, this Contract.

31. NOTICES

31.1 Any notice, request or other communication to be given or served pursuant to thisContract shall be in writing and dealt with as follows:

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(a) if given by the Contractor to the Commonwealth or ACMA - addressed andforwarded to ACMA for the attention of the Project Officer at the addressspecified in Item G of Schedule 1 or as otherwise notified by the ProjectOfficer;

(b) if given by the Commonwealth or ACMA to the Contractor - signed by the

Project Officer and addressed and forwarded to the Contractor at the addressspecified in Item G of Schedule 1 or as otherwise notified by the Contractorunder subclause 8.2.

31.2 Any such notice, request or other communication shall be delivered by hand or sentby pre-paid security post, facsimile or email, to the address of the party to which itis sent.

31.3 Any notice, request or other communication will be deemed to be received:

(a) if delivered personally, on the date of delivery;

(b) if sent by prepaid security post, on the day that the acknowledgment of

delivery is completed by the recipient;(c) if sent by facsimile, on the business day next following the day of dispatch

provided that the sender receives an "OK" code in respect of the transmissionand is not notified by the recipient by close of business of the next businessday following the day of dispatch that the transmission was illegible; and

(d) if sent by email, when the email enters an information system accessible to therecipient.

32. SURVIVAL

32.1 Unless the contrary intention appears, the expiration or termination of this Contract

will not affect the continued operation of any provision relating to:

(a) licensing of Intellectual Property;

(b) Confidential Information;

(c) protection of Personal Information;

(d) an indemnity;

(e) audit;

(f) dispute resolution; or

(g) any other provision which expressly or by implication from its nature is

intended to continue.

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SCHEDULE 1

OBLIGATIONS AND SERVICES TO BE PERFORMED

CONSULTANCY COMMISSION No. 05/ACMA [ ]

A. Services (see subclauses 1.1, 2.1 and 5.3)

The Services are for the:

[Include the title of the Services and a complete and detailed statement of work to beundertaken.

Give a full description of the Contractors obligations, work to be performed, expectedoutcomes and clear performance measures by which standards can be tested.

Ensure that particulars set out here are consistent with the body of this Contract, sincethis Contract provides that the Contract prevails over the Schedule Items to the extent of

any inconsistency.]

B. Material

Contract Material (see subclause 1.1)

The following Contract Material is required to be produced and delivered by theContractor:

[Specify:

(a) the nature and extent of the Contract Material that must be produced and

delivered (eg. a report, interim reports, plans, models, specifications, etc.);(b) the form in which the Material is to be produced (eg. documents, floppydisk, CD ROM, DVD or other media);

(c) any equipment necessary to access the Material; and

(d) the manner and timing of delivery of intermediate and final stages, if this isnot specified elsewhere.

It is important to include all Material here because otherwise it may be difficult for theCommonwealth to acquire ownership of Intellectual Property rights in Material unless:

(a) it is listed here; or

(b) it is clearly created for the purposes of this Contract.]

ACMA Material (see subclauses 1.1 and 9.1)

The Commonwealth shall ensure that ACMA shall provide the following Material to theContractor for the purposes of this Contract:

[Specify.]

Use of ACMA Material (see subclauses 9.4 and 9.6)

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The Contractor shall not, without the prior written approval of the Project Officer:

(a) use ACMA Material other than for the purposes of this Contract;

(b) modify ACMA Material;

(c) transfer possession or control of ACMA Material to a third party, including a

Subcontractor; or

(d) communicate or divulge ACMA Material to any third party.

Intellectual Property (see subclauses 1.1 and 10.2)

[Specify.]

Moral Rights (see subclauses 13.1 and 13.4)

[Nil or Specify.]

C. Time-frame (see subclause 2.3)

Term of Contract

Commencement Date: 20..

Expiration Date: 20..

[Set out the time-frame for provision of the Services (including the delivery of Contract

Material) specifying all relevant dates (eg, commencement, progress or interim stages andcompletion).

If delivery of the Contract Material is required in stages, provide a timetable setting outeach stage (specifying what Contract Material must be delivered at what time in each

stage)

In some cases it may be appropriate to specify dates by reference to acceptance ofprevious milestones or in some other relative way.]

Variation of Contract Term

The Commonwealth will have the right, upon written notice to the Contractor, to extendthe term of this Contract for a further period of [ ] on the same terms and conditions as inthis Contract.

Hours / days / key dates (where applicable)

[Specify.]

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D. Fees, Allowances and Assistance (see subclause 4.1)

Fees (see subclauses 3.1, 21.3 and 21.4)

Basis of calculation of fees

The fees payable to the Contractor are:

$ [ ] per hour or $ [ ] per week/calendar month, etc.

Timing of Payments (see subclause 3.2)

Subclause 3.2 provides that the Contractor shall be paid monthly in arrears.

Number of days after receipt of properly completed invoice that an invoice is payable

30 days.

Total Amount Payable Under Contract

[Modify as required.] The total amount payable to the Contractor under this Contract shallnot exceed $ [ ] without the prior written approval of the Project Officer.

If additional resources are required to meet the needs of the deliverables and timeline,these will be provided on a time and materials basis after agreement has been reached withthe Commonwealth.

Allowances and Costs (see subclause 3.1)

[Modify as required.]

Approved out of pocket expenses will be reimbursed to the Contractor at cost. Claimsshould clearly show details of expenses actually incurred, receipts are to be supplied where

practical.

If applicable, travelling expenses will be reimbursed at cost on production of receipts, themaximum claimable amount will be the total of the current APS non-SES accommodationand Travelling Allowance. Receipts for air tickets, accommodation, etc will be requiredfor acquittal and should be submitted with invoices. Air travel will be reimbursed at thecost of economy class fares for domestic travel and business class fares for internationaltravel unless prior approval has been given for a higher class of travel by the ACMAProject Officer. Private motor vehicle allowance may be paid at current APS non-SESrates where the Contractor or Specified Personnel are required to use their own car forofficial travel and the ACMA Project Officer has approved the payment.

In most circumstances, payments for Specified Personnel will be direct to the contractedcompany or body corporate, not individuals.

Payment Arrangements (see subclause 3.7)

The Contractors Nominated Bank Account for payments is as follows:

Name of Bank: [Specify Bank]

Physical Address of Bank: [Specify exact physical address]

Bank BSB: [Specify 6 digit number]

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Account Name: [Specify under whose exact name is the Bank Account]

Account Number: [Specify correct number]

Facilities and Assistance (see subclause 3.1)

[Modify as required.]The Commonwealth shall, and shall ensure that ACMA does, provide the followingfacilities free of charge to the Contractor if reasonably required for the performance of theServices:

(a) office accommodation at ACMA premises that is reasonably required by theContractors personnel for the performance of the Services;

(b) such normal office services and facilities at ACMA premises as are reasonablyrequired by the Contractors personnel for the performance of the Services; and

(c) such magnetic or optical media and consumables at ACMA premises as arereasonably required by the Contractors personnel for the performance of the

Services, other than specialised materials.

Invoice Procedures (see subclauses 3.3 and 3.4)

The due date for payment will be 30 days after receipt of a correctly rendered invoice.

The invoice shall be forwarded by the Contractor to the Project Officer and shall includethe following information:

(a) Contract Number 05/ACMA [ ];

(b) title of Services; and

(c) name of Project Officer.

Invoices must not state that they are due and payable other than in accordance with thenumber of days for payment after receipt of invoice specified in this Schedule 1.

E. Specified Personnel (see subclauses 1.1 and 7.1)

Specified Personnel to be engaged in the Services are as follows:

[Specify details of any particular individuals nominated to undertake and perform theServices or specified portions of those Services, or to provide particular ContractMaterial.

As appropriate, identify any personnel who are employees of a Subcontractor rather thanthe Contractor.]

F. Insurance (see subclause 16.1)

The Contractor shall, for so long as any obligations remain in connection with thisContract, effect and maintain:

(a) workers compensation insurance for an amount required by the applicable law;

(b) public liability insurance for an amount of not less than Twenty Million Dollars ($20million); and

(c) professional indemnity insurance for an amount of not less than Ten Million Dollars

($10 million).

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The Contractor should ensure that copies of such insurance policies, or certificates ofcurrency, are made available to the Project Officer for sighting if requested.

G. Addresses for Service of Notices

Project Officer (see subclause 1.1)The Project Officer shall be:

[Insert details.]

Ms/rTelephone: (0.)Email:

Commonwealth and ACMA Address for Service of Notices (see subclause 31.1)

Any letters or notices from the Contractor to the Commonwealth or ACMA shall be

addressed as follows:

[Insert details.]

Ms/r(Title)(Area)Australian Communications and Media Authority(Postal Address)Facsimile: (0.)Email:

Contractors Address for Service of Notices (see subclause 31.1)

Any letters or notices from the Commonwealth or ACMA to the Contractor shall beaddressed as follows:

[Insert details.]

Ms/r(Title)(Area)(Name of Contractor)

(Postal Address)

Facsimile: (0 )Email:

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SCHEDULE 2

DEED OF CONFIDENTIALITY, PRIVACY AND OWNERSHIP OFINTELLECTUAL PROPERTY RIGHTS

BY THIS DEED DATED THE ................... day of ................... 2005

IN FAVOUR OF

COMMONWEALTH OF AUSTRALIA represented by the Chief Executive Officer ofthe Australian Communications and Media Authority, a body corporate established undertheAustralian Communications and Media Authority Act 2005, ABN 55 386 169 386(the Commonwealth)

AND

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY, a bodycorporate established under theAustralian Communications and Media Authority

Act 2005, ABN55 386 169 386 (ACMA)

MADE BY

[CONTRACTORS NAME], whose registered office is at [Contractors Address],ABN, ACN (the Contractor) [Or if an OFFICER, EMPLOYEE, AGENT ORSUBCONTRACTORof the Contractor replace with required details and alsoreplace references to the Contractor in this Deed accordingly, except in RecitalA.]

Recitals:

A. [Insert Contractors details, ABN and ACN], has entered into a contractwith the Commonwealth (the Contract) on [Insert date of Contract] for the

provision to the Commonwealth, for the benefit of ACMA, of [Insert briefdescription of services] (the Services).

B. In the course of the Contractor performing the Services, the Contractor may:

(i) become aware of information, belonging to or in the possession ofACMA (including information of the Commonwealth), that is

confidential or that is personal information under thePrivacy Act 1988(Cth); and

(ii) create Intellectual Property Rights.

C. Improper use or disclosure of that information would severely damageACMAs ability to perform its governmental/statutory functions.

D. It is the Contractors intention to take all reasonable steps (including theexecution of this Deed) to ensure that confidential information of ACMA(including confidential information of the Commonwealth) is keptconfidential and that personal information is protected.

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E. It is the Contractors intention that all Intellectual Property Rights arisingfrom the performance of the Services be assigned to the Commonwealthsolely.

COVENANTS OF THIS DEED:

1. Recitals

1.1 The Contractor acknowledges the truth and accuracy of the Recitals in everyparticular.

2. Interpretation

2.1 Definitions

In the interpretation of this Deed unless the contrary intention appears or thecontext otherwise requires or admits the following expressions will have thefollowing meanings:

confidential information means information that:

(a) is by its nature confidential;

(b) is designated by ACMA or the Commonwealth as confidential; or

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

and includes:

(d) information comprised in or relating to any Intellectual Property Rights of theCommonwealth that are used by ACMA;

(e) any information relating to the financial position of ACMA and inparticular information relating to the accounts and records of ACMA

and any other matter that does or may affect the financial position orreputation of ACMA;

(f) information relating to the internal management and structure ofACMA, and in particular information relating to the personnel, policiesand strategies of ACMA;

(g) any information about the Contract or other contracts associated withthe Contract and any information of ACMA which the Contractor hasaccessed (other than information referred to in paragraphs (d), (e) and(f)) that has any actual or potential commercial value to theCommonwealth in relation to ACMA or to the person or corporation

which supplied the commercial information;(h) any information relating to the policies, strategies, practices and

procedures of ACMA;

(i) any information in ACMA's possession relating to the Australian PublicService or ACMA's clients or suppliers, and like information;

but does not include information which:

(j) is or becomes public knowledge other than by breach of this Deed or byany other unlawful means;

(k) is in the possession of the receiving party without restriction in relation

to disclosure prior to the date of receipt from the disclosing party;

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(l) has been independently developed or acquired by the receiving party; or

(m) is in respect of ideas, concepts, know-how, techniques or methodologieswhere disclosure is permitted under the Contract;

Intellectual Property Rights includes all copyright and neighbouring rights, all

rights in relation to inventions (including patent rights), plant varieties, registeredand unregistered trademarks (including service marks), registered designs,confidential information (including trade secrets and know how) and circuitlayouts, and all other rights resulting from intellectual activity in the industrial,scientific, literary or artistic fields;

notice means notice in writing given in accordance with this Deed;

personal information means, for the purposes of thePrivacy Act 1988 (Cth) and thisDeed, information or an opinion (including information or an opinion forming part of adatabase), whether true or not, and whether recorded in a material form or not, about anatural person whose identity is apparent, or can reasonably be ascertained, from theinformation or opinion;

writing means any mode of representing or reproducing words, figures, drawingsor symbols in a visible form.

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 andhave no effect in limiting or extending the language of the provisions towhich 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 whethercorporate or otherwise;

(g) a reference to a clause or subclause is a reference to a clause orsubclause of this Deed; and

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

corresponding meanings.

3. Non Disclosure

3.1 The Contractor shall not disclose confidential information to any personwithout the prior written consent of ACMA.

3.2 The Contractor acknowledges that ACMA may grant or withhold its consentin its absolute and unfettered discretion.

3.3 The Contractor acknowledges that if ACMA grants its consent, it mayimpose conditions on that consent. In particular, but without limiting thegenerality of the preceding sentence, ACMA may require that the

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Contractor procure the execution of a Deed in these terms by the person towhom the Contractor proposes to disclose the confidential information.

3.4 The Contractor acknowledges that if ACMA grants consent subject toconditions, the Contractor must comply with those conditions.

3.5 The obligations of the Contractor under this Deed will not be taken to havebeen breached where the confidential information is legally required to bedisclosed.

4. Restriction on Use

4.1 The Contractor will use the confidential information only for the purpose ofits dealings with ACMA (whether directly or indirectly).

5. Privacy

5.1 The Contractor undertakes:

(a) not to access, use, modify, disclose or retain any personal information the

Contractor has acquired through the performance of the Services, exceptfor the purpose of performing those Services; and

(b) in addition to any direction as to particular measures specified byACMA, take all reasonable measures to ensure that any personalinformation held in connection with the Contract is protected againstloss, unauthorised access, use, modification or disclosure and againstother misuse.

5.2 The Contractor acknowledges that:

(a) any unauthorised access, modification or impairment, includingdestruction, alteration, addition or impediment to access or usefulness, of

personal information stored in any ACMA computer is an offence underPart 10.7 of the Criminal Code Act 1995 which may attract a substantial

penalty, including imprisonment; and

(b) the publication or communication by the Contractor of any fact ordocument which has come to his or her or its knowledge or into his orher or its possession or custody by virtue of the performance of theContract (other than to a person to whom the Contractor is authorised to

publish or disclose the fact or document) may be an offence undersections 70 or 79 of the Crimes Act 1914, punishment for which mayinvolve imprisonment.

5.3 The undertakings made in this clause 5 will survive the termination or expiryof the Contract.

6. Survival

6.1 This Deed will survive the termination or expiry of the Contract.

7. Powers of ACMA

7.1 The Contractor acknowledges that ACMA may demand (without needing toreduce the demand to writing) the delivery up to ACMA of all documents inthe possession or control of the Contractor containing confidentialinformation or personal information or which are records or documents of

ACMA.

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7.2 The Contractor must immediately comply with a demand under this clause 7.

7.3 The Contractor acknowledges that if ACMA makes a demand of the type inthis clause 7, and the Contractor has placed or is aware that documents are

beyond his or her or its possession or control, then the Contractor mustprovide full particulars of the whereabouts of the documents, and the

identity of the person in whose custody or control they lie.

7.4 In this clause 7, "documents" includes any form of storage of information,whether visible to the eye or not.

7.5 The Contractor acknowledges that the Commonwealth and ACMA may takelegal proceedings against the Contractor or third parties if there is anyactual, threatened or suspected breach of this Deed, including proceedingsfor an injunction to restrain such breach.

8. Conflict of Interest

8.1 The Contractor warrants that before entering into this Deed it has disclosed

to ACMA all the past, current and anticipated interests of the Contractorwhich may conflict with or restrict the Contractor in performing Servicesunder the Contract for the benefit of ACMA fairly and independently.

8.2 If during the term of the Contract a conflict of interest arises, or appearslikely to arise, the Contractor undertakes to notify ACMA immediately inwriting and to take such steps as ACMA may reasonably require to resolveor otherwise deal with the conflict.

9. Intellectual Property

9.1 The Contractor agrees that the Commonwealth will own all IntellectualProperty Rights arising out of the performance by the Contractor of the

Services and the Contractor irrevocably assigns to the Commonwealth allIntellectual Property Rights acquired by the Contractor arising from, or whichmight arise in the future from, the performance of the Services.

10. No Exclusion of Law or Equity

10.1 This Deed must not be construed to exclude the operation of any rule orprinciple of law or equity intended to protect and preserve theconfidentiality of the confidential information.

11. Waiver

11.1 No waiver by the Commonwealth or ACMA of one breach of any obligation

or provision of this Deed will operate as a waiver of another breach of thesame or of any other obligation or provision of this Deed.

11.2 None of the provisions of this Deed will be taken either at law or in equityto have been varied, waived, discharged or released by the Commonwealthor ACMA unless by its express consent in writing.

12. Remedies Cumulative

12.1 The rights and remedies provided under this Deed are cumulative and notexclusive of any rights or remedies provided by law or equity or any othersuch right or remedy.

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12.2 Subject to the other covenants of this Deed, the rights and obligations of theContractor pursuant to this Deed are in addition to and not in derogation ofany other right or obligation of the Contractor under any other deed oragreement to which the Contractor is a party.

13. Variations and Amendments

13.1 The Contractor acknowledges that no term or provision of this Deed may beamended or varied unless agreed to by the Commonwealth and ACMA andsuch amendment or variation is reduced to writing and signed by theContractor in the same manner as this instrument.

14. Applicable Law

14.1 This Deed shall be governed and construed in all respects in accordancewith the law in force in the Australian Capital Territory from time to time.

EXECUTED AS A DEED

Signed for and on behalf of[Insert NAME and ACN/ABN details)

by authority of the directors

(Print name of Director) (Signature of Director)

(Print name of Director/Secretary) (Signature of Director/Secretary)

If a sole Director who is also the sole Secretary


in the presence of:))

.................................................... ) ..................................(Print witness name) (Signature of witness)

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IN WITNESS the parties have executed this Contract on the day and year first writtenon page three (3).

SIGNED for and on behalf of theCOMMONWEALTH OF AUSTRALIArepresented by the Chief Executive Officer of theAustralian Communications and Media Authority,ABN 55 386 169 386

by its delegate

.................................................................(Insert delegate name) )

.................................................................(Insert Title) )

.................................................................(Insert Branch/Section) ) .............................

in the presence of:

))

................................................................. ) ..............................(Print witness name) (Signature of witness)

Signed for and on behalf of(Insert name and ACN/ABN details)

by authority of the directors

(Print name of Director) (Signature of Director)

and


(If a sole director who is also the sole secretary, please use the lower boxes and annotate Sole Director/Secretary)

schedule 2 - draft contract - 06-acma016

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