ࡱ>  @ bjbj)) uKzKzDDDDppp$LFfNF\\\b _\a\a\a\>\3ae$ hR\jpeppN"eDD\\ f--,4DV\ 8\[x,_\--HXQ\ !BP&cR f0FfPj%#jLQDDDDjpQn`,d/eemxd'&x The State of Victoria through the Department for Victorian Communities and [insert name of Contractor] THE TERMS AND CONDITIONS OF THIS CONTRACT HAVE BEEN LOCKED FOR EDITING. ONLY THE TEXT IN BLUE CAN BE CHANGED. IF YOU NEED ANY OTHER CHANGES, YOU SHOULD CONTACT LEGAL SERVICES. Survey of Victorias veterans related heritage Contract Date of Contract: / /  DATE \@ "yyyy" \* MERGEFORMAT 2007 [Insert date by hand once all parties have signed]  Contents  TOC \o "1-2" \t "Heading - 1,1" Execution Page  PAGEREF _Toc110243919 \h 3 Part 1 Details  PAGEREF _Toc110243920 \h 6 Part 2 Payment Structure  PAGEREF _Toc110243921 \h 8 Part 3 Terms and Conditions  PAGEREF _Toc110243922 \h 10 1 Definitions and Interpretation  PAGEREF _Toc110243923 \h 10 2 Period of contract  PAGEREF _Toc110243924 \h 12 3 Contractor's obligations  PAGEREF _Toc110243925 \h 13 4 Payment  PAGEREF _Toc110243926 \h 14 5 Contractor's Principal Officer  PAGEREF _Toc110243927 \h 15 6 Supervising Officer  PAGEREF _Toc110243928 \h 16 7 Confidentiality  PAGEREF _Toc110243929 \h 16 8 Intellectual property  PAGEREF _Toc110243930 \h 18 9 Status of Contractor  PAGEREF _Toc110243931 \h 19 10 Indemnity and insurance  PAGEREF _Toc110243932 \h 19 11 Dispute resolution  PAGEREF _Toc110243933 \h 20 12 Termination  PAGEREF _Toc110243934 \h 21 13 Resources  PAGEREF _Toc110243935 \h 23 14 Notices  PAGEREF _Toc110243936 \h 23 15 Governing law  PAGEREF _Toc110243937 \h 23 16 Entire contract  PAGEREF _Toc110243938 \h 24 17 Joint and several liability  PAGEREF _Toc110243939 \h 24 18 No assignment or subcontracting  PAGEREF _Toc110243940 \h 24 19 Scope or timing of services  PAGEREF _Toc110243941 \h 24 20 Variation of contract  PAGEREF _Toc110243942 \h 24 21 Conflict of interest  PAGEREF _Toc110243943 \h 24 22 Waivers  PAGEREF _Toc110243944 \h 25 23 Employment Policy  PAGEREF _Toc110243945 \h 25 24 Force Majeure  PAGEREF _Toc110243946 \h 25 Schedule A Confidentiality Undertaking  PAGEREF _Toc110243947 \h 26 Schedule B Detailed Description of Services  PAGEREF _Toc110243948 \h 27 Schedule C Project Schedule  PAGEREF _Toc110243949 \h 28  Parties:The State of Victoria, through the Department of Planning and Community Development of Level 15 1 Spring Street, Melbourne Vic ("DPCD"); And The Contractor named in Item 1 of Part 1 ("Contractor").Recitals:A. DPCD has requested the Contractor to perform the Services specified in this Contract. B. The Contractor has agreed to perform the Services in accordance with the terms and conditions in this Contract Execution Page EXECUTED BY THE PARTIES AS A CONTRACT DVC SIGNED by XXXXXXXXX [Title...............] of [........................] Division) for and on behalf of the State of Victoria through THE DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT in the presence of: ))))))[INSTRUCTION to be signed by the financial delegate with the appropriate delegation level  Signature of witness Name of witness (block letters) By executing this Contract the signatory warrants that the signatory is duly authorised to execute this Contract on behalf of DPCD [DELETE WHICHEVER ARE NOT APPLICABLE] COMPANY THE COMMON SEAL of ............... PtyLtd/Limited (ACN ..............................) was affixed in accordance with its constitution in the presence of:))))[INSTRUCTION - for use when a company executes the contract by fixing its common seal]  Signature of Director Name of Director (block letters) Signature of Director/Company Secretary Name of Director/Company Secretary (block letters)  SIGNED by XXXXXXXXX PtyLtd/Limited (ACN ..............................) in accordance with the Corporations Act 2001:[INSTRUCTION - for use when a company executes the Contract without fixing its common seal]  Signature of Director (By executing this Contract the signatory warrants that the signatory is a director of the Contractor) Name of Director (block letters) Signature of Director/Company Secretary (By executing this Contract the signatory warrants that the signatory is a director/company secretary of the Contractor) Name of Director/Company Secretary (block letters)  SIGNED by XXXXXXXXX as authorised representative for XXXXXXXXX PtyLtd/Limited (ACN ..............................) in the presence of: ))))[INSTRUCTION - for use when an officer of a company executes the contract on the company's behalf] Signature of authorised representative  Signature of witness Name of witness (block letters)  By executing this Contract the signatory warrants that the signatory is duly authorised to execute this Contract on behalf of the Contractor PARTNERSHIP SIGNED by XXXXXXXXX as authorised representative for and on behalf of all the partners trading as XXXXXXXXXXX in the presence of: ))))[INSTRUCTION - for use when a duly authorised representative of a partnership executes the contract] Signature of authorised representative Signature of witness Name of witness (block letters)  By executing this Contract the signatory warrants that the signatory is duly authorised to execute this Contract on behalf of the Contractor INCORPORATED ASSOCIATION THE COMMON SEAL of XXXXXXXXX Inc. was affixed by the authority of its committee in the presence of: ))))[INSTRUCTION - for use when an incorporated association executes the contract by fixing its common seal]  Signature of authorised person Office held Name of authorised person (block letters)  Signature of authorised person Office held Name of authorised person (block letters)  SIGNED by XXXXXXXXX as authorised representative for XXXXXXXXX Inc. in the presence of:)))[INSTRUCTION - for use when an authorised representative of a incorporated association executes the contract on the associations behalf] Signature of authorised representative Signature of witness Name of witness (block letters)  By executing this Contract the signatory warrants that the signatory is duly authorised to execute this Contract on behalf of the Contractor UNIVERSITY OR OTHER INCORPORATED STATUTORY BODY THE COMMON SEAL of XXXXXXXX was affixed in the presence of: ))))[INSTRUCTION - for use when a university or other incorporated statutory body executes the contract by fixing its common seal]  Signature of authorised person Office held Name of authorised person (block letters)  Signature of authorised person Office held Name of authorised person (block letters)  INDIVIDUAL SIGNED by XXXXXXXXX in the presence of:)))[INSTRUCTION - for use when an individual executes the contract] Signature of Contractor Signature of witness Name of witness (block letters)  Part 1 Details The details of this Contract are: 1. Contractor: [Name Contractor] (ACN ) (ABN ) 2. Project:[Enter description of project]3. Brief description of Services:4. Commencement Date: (clause 1.1)5. Completion Date: (clause 1.1)6. Contractor's Principal Officer: (clause 1.1)Name: Position:7. Supervising Officer: (clause 6.1)Name: Position:8. Option Period: (clause 2.3)Nil [Default - only to be varied in accordance with the Departments original brief as approved by the APU/VGPB]9. (a) Amount of Public Liability Insurance (clause 10.7)$10,000,000 [Default may not be reduced without endorsement by DVC Insurance Unit] (b) Product Liability Insurance: (if applicable) (clause 10.8) $5,000,000 [Default may not be reduced without endorsement by VMIA, except where not applicable, in which case replace with Nil] Is Product Liability Insurance required?YES / NO [delete one]10. Amount of Professional Indemnity Insurance: (clause 10.9)$5,000,000 [Default may not be reduced without endorsement by VMIA]11. Maintenance of Cover period: (clause 10.9)6 years [Default may not be reduced without endorsement by VMIA]12. Address of Contractor: (clause 14.1 - Notices)[Address of principal place of business]13. Facsimile of Contractor: (clause 14.1 - Notices)[Contractors fax number]14. Address of DVC: (clause 14.1 - Notices)[DVC to insert region/section of DVC and address]15. Facsimile of DVC: (clause 14.1 - Notices)[DVC to insert fax number]16. Maximum Amount Payable$[Insert the maximum total amount payable to the Contractor under the Contract] Part 2 Payment Structure State here details of the Payments to be paid by DVC to the Contractor. This obligation should be linked, as appropriate, to instalment payments against progressive completion /deliverables of the Project, acceptance by the Supervising Officer as meeting the requirements of the Contract, and observance of specified acquittal procedures. Summary of Payments (Delete those Options not applicable) Option 1: Maximum Lump Sum$Option 2: Maximum Milestone Payments$Option 3: Maximum Professional Fee$Option 4: Maximum Expenses $Option 5: Maximum Other Fee Structure$Maximum Payable:$ Method of Payment (Select from options 1 to 5 and delete those Options not applicable) Pursuant to clause 4 of Part 3, DVC will pay the Contractor by reference to the following options: Option 1: Lump Sum Fee: $ [Use this when the Contractor is to be paid a lump sum on completion of the Services/Project]This amount is payable when DVC certifies that the Services have been completed in accordance with the requirements of this Contract.  Option 2: Milestone Payments - payable by reference to the following milestones: [If payments are to be made by instalments during the term of the Contract, the services and/or products to be delivered (that give rise to DVCs obligation to pay) should be stated, together with the due date for delivery and the amount payable for each milestone]Milestone DescriptionDate DuePayment1.$2.$3.$Total Milestone Payments will not exceed$ Option 3: Professional Fee [This may be applicable where the Contractor is to be paid at an hourly rate, for specified people to provide services, up to a maximum total amount as set out below] The Professional Fee payable will be calculated in respect of each person named or designated below at the rate and up to the maximum(s) set out below.Name or DesignationHourly RateDailyMaximum$$$$$$$$$The total Professional Fee will not exceed $ Option 4: ExpensesExpense Type Description of Expense [The nature of the expense must be described]Maximum per item Travel$Accommodation$Other$ Option 5: Other Fee Structure(insert details) The total payable will not exceed $ NB: If the payment pursuant to clause 4.1 of Part 3 exceeds AUS$25,000, DVC may withhold 20% of the amount to be paid to the Contractor until DVC is satisfied that the Services and Project are satisfactorily completed. Part 3 Terms and Conditions Definitions and Interpretation Definitions and Interpretation For the purposes of this Contract: Business Day means a day (not being a Saturday or Sunday) on which banks are open for general banking business in Melbourne. Commencement Date means the date stated in Item 4 of Part 1. Completion Date means the date stated in Item 5 of Part 1 (as amended by the exercise of any option under clause 2.3). Confidential Information means any information or data, including Personal Information, whether or not in a material form, which is confidential to a party including confidential information acquired, collected or developed for the purpose of the Project or obtained during the currency of this Contract, except that which is already in the public domain otherwise than as a result of a breach of this Contract. Contract means this agreement between the parties consisting of: Part 1 The Details Part 2 - Fee Structure Part 3 - Operative Provisions Schedule A - Confidentiality Undertaking Schedule B - Project Brief and Proposal Schedule C - Project Schedule Contractor means the party listed in Item 1 of Part 1 - Details. Contractor's Principal Officer means the person stated in Item 6 of Part 1. DVC means the State of Victoria as represented by the Department for Victorian Communities or any other department of state or authority that takes over management of this contract. Expenses means the out of pocket expenses, if any, set out in Part 2 to be paid pursuant to clause 4. Force Majeure Event means any occurrence or omission as a direct or indirect result of which the party relying on it is prevented from or delayed in performing any of its obligations under this document and that is beyond the reasonable control of that party, including war, riots, acts of gods and industrial action (provided it is not directed only at that party). GST means GST within the meaning of the GST Act. GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended. Insolvency Event means: in respect of a Contractor who is a natural person: the Contractor commits an act of bankruptcy as defined in section 40 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act); a creditor's petition is presented against the Contractor pursuant to Division 2 of Part IV of the Bankruptcy Act; the Contractor presents a petition against himself or herself pursuant to section 55 of the Bankruptcy Act; a sequestration order is made in respect of the Contractor; the Contractor signs an authority pursuant to section 188 of the Bankruptcy Act; a meeting of creditors of the Contractor is convened for the purposes of Part X of the Bankruptcy Act; the Contractor enters into any arrangement with creditors pursuant to Part X of the Bankruptcy Act; in respect of a Contractor who is not a natural person: the board of the Contractor passes a resolution under section 436A of the Corporations Act; the Contractor is placed into administration pursuant to Part 5.3A of the Corporations Act; a deed of arrangement is entered in respect of the Contractor; an application is made to a court for the winding up of the Contractor; the Contractor resolves that it be wound up voluntarily; a winding up order is made in respect of the Contractor; a receiver or receiver and manager is appointed to the Contractor; a court orders that there be a meeting of creditors or members of the Contractor for any purpose related to Part 5.1 of the Corporations Act; and in either case: a mortgagee takes possession of any assets of the Contractor; the Contractor informs DVC or any creditor of the Contractor, in writing, that it, he or she is insolvent; or any execution is levied against the property of the Contractor and remains unsatisfied for 30 days. Intellectual Property means trademarks, patents, circuit layouts, copyrights, know-how and all other rights with respect to Intellectual Property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967, and rights in respect of such Intellectual Property includes all statutory and other proprietary rights Laws includes all Acts of the Parliaments of Australia and the states, and all regulations, by-laws, awards and orders made thereunder, and the lawful requirements of public, municipal and other competent authorities in any way affecting or applicable to the Services and the Project. Maximum Amount Payable means the amount stated in item 16 of Part 1, being the maximum amount that can be paid by DVC to the Contractor for the Services. Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. Project means the project to be undertaken as described in Item 2 of Part 1 in respect of which the Services are to be provided. Project Brief means the brief for the Project set out in Schedule B Part 1. Proposal means the submission prepared by the Contractor in relation to the Project, as set out in Schedule B Part 2. Schedule means a schedule to this Contract. Services means the services to be provided by the Contractor as set out in brief in Item 3 of Part 1 and more fully set out in Schedule B. Supervising Officer means the person nominated in accordance with clause 6.1 (stated in Item 7 of Part 1) or such other person from time to time filling the position of that person. Unless the context requires otherwise: words importing any gender include each other gender; the plural includes the singular and vice versa; a reference to a person includes any other entity recognised by law and vice versa; a reference to a statute, ordinance, code or other law includes subordinate legislation, consolidations, amendments, re-enactments, and replacements of it; terms used in the Project Brief and in the Proposal have the same meaning when used in this Contract; where a term is defined, the definition includes all other grammatical forms of that term; and headings and notes in square brackets are for reference only. Inconsistencies between the terms of this Contract will be resolved in the following order of priority: Part 1; the clauses incorporated in this Part 3; Part 2; Schedules in numeric order starting with 1 and then in alphabetic order starting with A. Despite anything contained in this contract, the obligations of clauses  REF _Ref58820928 \r \h 7.1,  REF _Ref19079130 \r \h 7.2,  REF _Ref60825225 \r \h 7.8,  REF _Ref64360599 \r \h 7.10,  REF _Ref64360604 \r \h 7.11,  REF _Ref64360616 \r \h 8.1 to  REF _Ref64360642 \r \h 8.6 and  REF _Ref64360646 \r \h 10.1 are continuing obligations and will not cease on the completion, expiry or termination of this Contract or any other discharge of this Contract. In performing this Contract, both parties must act reasonably and in good faith. Period of contract The Contractor's engagement under this Contract will commence on the Commencement Date and, subject to this clause 2 and clause 12, conclude on the Completion Date or such other date as agreed in writing between the parties. If the Contractor fails to deliver to the reasonable satisfaction of DVC by the Completion Date any product or service that it is required to deliver under this Contract then this Contract will continue, without the Contractor being entitled to any additional payment, until: the product or service is delivered to DVC; DVC waives the right to insist on delivery of the product or service; or DVC elects (in its sole discretion) to end this Contract by notice to the Contractor, but the operation of this clause will not be construed as a waiver by DVC of any of it rights. Option to renew DVC may, in its sole and absolute discretion, renew this Contract for a period not exceeding the period set out in Item 8 of Part 1, by giving notice in accordance with sub-clause  REF _Ref61327626 \r \h 2.4. DVC may provide the Contractor with a written notice of exercise of the option to renew, stating the period for which this Contract will be renewed, no later than three (3) calendar months before the Completion Date. If DVC exercises its option to renew, this Contract will be renewed, on the same terms and conditions, for the period specified in the notice given under clause  REF _Ref61327626 \r \h 2.4 and the Completion Date will be extended by that period. The commencement day of the renewed Contract pursuant to this option clause will be the day immediately following the day that was formerly the Completion Date irrespective of whether that day is a Business Day. If DVC exercises the option to renew for a period of less than two years, DVC may exercise the option to renew for a further period, in accordance with clause 2.3, provided that the total period of the Contract, including all further periods, is not more than five (5) years. Contractor's obligations The Contractor must carry out the Services in accordance with this Contract to the reasonable satisfaction of DVC. Duties The Contractor must: exercise due care, skill and judgement and at all times act in accordance with the highest professional principles and standards applicable in the field of endeavour to which the Services relate; ensure that any person employed by the Contractor to perform any work under this Contract possesses adequate levels of skill and experience to perform that work to the satisfaction of DVC; observe and comply with all Laws; perform the Services within such reasonable time as may be stipulated by the Supervising Officer and otherwise in a timely manner; have regard to such consideration and requirements as may be conveyed by the Supervising Officer; and prepare and submit to the Supervising Officer within such reasonable time as may be stipulated by the Supervising Officer, progress reports or other material prepared in accordance with this Contract. Payment Amount of payment DVC will pay the Contractor for the Services in accordance with this clause  REF _Ref110236631 \w \h 4 and Part 2. If the total amount payable under the Contract is in excess of $25,000, DVC may withhold 20% of the amount to be paid to the Contractor until DVC is satisfied that the Project is satisfactorily completed. If this Contract is for any amount of less than $3 million and an amount is due and payable by DVC to the Contractor under this Contract and remains unpaid, DVC will pay simple interest on the daily balance of the unpaid amount. Interest will be calculated at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic), starting from the day after the amount became overdue; will not be payable in respect of a period during which any amount is disputed; and will only become payable after the Contractor gives DVC notice under clause  REF _Ref110236570 \w \h 4.4 requesting payment of interest. For the purposes of clause  REF _Ref110236600 \w \h 4.3, notice cannot be given prior to, or more than 30 days after, the amount becomes overdue. Notice must be in writing delivered to: Corporate Finance Department for Victorian Communities PO Box 2392V Melbourne 3001 Method of payment The Contractor must: submit invoices for payment for the Services monthly in arrears, or in accordance with such other schedule of payments as set out in Part 2; provide information in support of the value of any invoice if requested by the Supervising Officer; detail the amount of any GST included in the invoice for payment for the Services. Time of payment Subject to clause 4.2 and unless the Supervising Officer questions or disputes the amount stated in the invoice, DVC will pay the invoiced amount within thirty (30) days of receiving the invoice. Disputed claims If the Supervising Officer disputes the whole or any portion of the amount stated in the invoice: DVC will pay the portion of the invoice which is not in dispute and will notify the Contractor in writing of the reasons for disputing the balance of the invoice; and if the parties are unable to agree within seven (7) days of DVC giving the notice, the dispute will be settled in accordance with clause 11. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, DVC will pay the amount finally resolved. Expenses The Contractor may only claim Expenses on the basis of actual expenses incurred, as evidenced to the satisfaction of the Supervising Officer. Expenses will not be payable in excess of the maximum amount for each item set out in Part 2 unless the Supervising Officer agrees in writing before the Expense is incurred. Other Out of Pocket Expenses All other out of pocket expenses are deemed to have been allowed for in the amounts payable set out in Part 2 and may not be separately claimed for by the Contractor. Limit on Total of All Fees Subject to the provisions of this Contract, the amount payable by DVC will be limited to the respective maximum amounts set out in the Summary of Payments in Part 2. In any event, the amount payable by DVC cannot exceed the Maximum Amount Payable, which is a cap only and does not entitle the Contractor to be paid that amount. GST In this clause, expressions set out in italics bear the same meaning as those expressions in the GST Act. DVC and the Contractor will maintain registration for the purpose of receiving and supplying taxable supplies under the GST Act. Unless otherwise stated, an amount payable by DVC under this Contract in respect of a supply by the Contractor that is a taxable supply, represents the GST inclusive value of the supply and DVC is not required to pay to the Contractor any additional amount for the GST payable in respect of the supply. The Contractor must give DVC a tax invoice at the time of submitting an invoice for payment under clause 4.3. Clauses 4.9 to 4.12 have no application where the Services are input taxed or GST-free. Contractor's Principal Officer The Project must be carried out by the Contractor under the direction of the Contractor's Principal Officer and no other person, unless DVC consents otherwise in writing. The Contractor's Principal Officer will: represent the Contractor and be available at all reasonable times for consultation with DVC or the Supervising Officer in connection with any matter arising under this Contract; and be deemed to be the agent of the Contractor in respect of any decision made or information given or received by the Contractor concerning any matter arising under this Contract, with full authority to bind the Contractor. Supervising Officer Supervision DVC will nominate a person to act as the Supervising Officer to supervise performance of this Contract (as set out in Item 7 of Part 1) and retain the Supervising Officer for the duration of this Contract. The Supervising Officer will: represent DVC and be available at all reasonable times for consultation with the Contractor's Principal Officer in connection with any matter arising under this Contract; and be deemed to be the agent of DVC in respect of any decision made (except with respect to payment of moneys in excess of Maximum Amount Payable) or information given to or received by the Supervising Officer concerning any matter arising under this Contract unless stated otherwise in this Contract. Confidentiality Mutual Undertaking Each party must keep all Confidential Information absolutely confidential and each party warrants to the other that it will not communicate, publish or release, or permit the communication, publication or release of any Confidential Information except: as is necessary for the parties to perform their obligations under this Contract; as required by Law; or as is permitted under this contract or otherwise agreed in writing by the parties. Privacy The Contractor acknowledges that it is an organisation within the meaning of the Information Privacy Act 2000 (the IP Act) and agrees in respect of the provision of the Services under this Contract: to use and disclose personal information obtained during the course of providing the Services under this Contract, only for the purposes of this Contract and in accordance with the IP Act; not to do any act or engage in any practice that would breach an Information Privacy Principle (IPP) contained in part 1 of the IP Act, which if done or engaged in by DVC, would be a breach of that IPP; to carry out and discharge the obligations contained in the IPPs as if it were DVC under the IP Act; to ensure that any employee of the Contractor who is required to deal with personal information for the purposes of this Contract is made aware of the obligations of the Contractor set out in clauses  REF _Ref19079130 \r \h  \* MERGEFORMAT 7.2 and  REF _Ref36368766 \r \h  \* MERGEFORMAT 7.3; and to immediately notify DVC if the Contractor becomes aware of a breach or possible breach of any of the obligations referred to in subclauses (a) to (g), whether by the Contractor or any subcontractor. The Contractor agrees to ensure that any subcontract entered into for the purpose of fulfilling its obligations under this Contract contains provisions to ensure that the subcontractor has the same awareness and obligations as the Contractor has under clauses  REF _Ref19079130 \r \h  \* MERGEFORMAT 7.2 and  REF _Ref36368766 \r \h  \* MERGEFORMAT 7.3. Clauses  REF _Ref19079130 \r \h  \* MERGEFORMAT 7.2 and  REF _Ref36368766 \r \h  \* MERGEFORMAT 7.3 apply only where the Contractor deals with personal information (as defined in the IP Act) and for the purpose of, providing the Services under this Contract. The provisions of clauses  REF _Ref19079130 \r \h  \* MERGEFORMAT 7.2 to  REF _Ref36368766 \r \h  \* MERGEFORMAT 7.3 survive termination or expiration of this Contract Undertaking by Employees and Agents of Contractor The Contractor must: procure from each person employed or engaged by it in relation to this Contract an undertaking that is consistent with the Contractors obligations under clause 7.1, in effect, that the person will not communicate, publish or release Confidential Information, before giving them access to any Confidential Information; on being informed, or otherwise becoming aware, of any breach or anticipated breach of any undertaking referred to in subclause (a), take such action as may be necessary to enforce that compliance, including all reasonable actions directed by DVC, and irrevocably authorises and permits DVC to enforce the undertaking in the event that the Contractor fails to adequately do so. If in the reasonable opinion of DVC the Confidential Information is of an extremely sensitive nature, then DVC may at any time request in writing that undertaking required by clause  REF _Ref58821020 \r \h  \* MERGEFORMAT 7.5 be given in the form of an executed deed in favour of DVC, essentially in the form set out in Schedule A. If DVC so requests, then the Contractor must deliver a copy of the undertaking to the Supervising Officer. Undertaking by Others Where in the conduct of, or for the purposes of, the Project the Contractor desires to engage the services of a person who is not an employee or agent, and it is necessary for the purposes of that engagement to disclose Confidential Information, no such disclosure may be made unless: the other person warrants to DVC that it will maintain the confidentiality of the Information in like terms to that required by clause 7.1 of this Contract; except as expressly excluded by DVC in writing, the other person executes and delivers to the Supervising Officer a similar undertaking to that set out in clause  REF _Ref58820928 \r \h  \* MERGEFORMAT 7.1 and Schedule A; and the consent in writing of the Supervising Officer is first obtained. Surrender of Materials Subject to clause  REF _Ref64360463 \r \h 7.9, on or before the Completion Date (or earlier termination) the Contractor must: deliver to DVC all Confidential Information and other material received from or through DVC including without limiting the generality thereof, reports, papers, technical information, plans, charts, drawings, calculations, tables, graphs, schedules, notes, computer programs, computer tapes and discs, computer data bases, reference books and other texts; and delete and render irrecoverable any form of electronic or optical record of the final report or any draft or copy thereof, or any other information or program that was created, collected or otherwise received in the course of carrying out the Project including installed software provided by DVC. If the Supervising Officer gives the Contractor written permission to retain certain specific Confidential Information held in electronic or written form, the Contractor need not comply with the provisions of clause  REF _Ref60825225 \r \h 7.8 in respect of the relevant materials. Security of Materials Each party must take all reasonable measures to ensure the security of the Confidential Information for so long as that Confidential Information is within its control, and in so doing must ensure that the Confidential Information is protected at all times from access, use or misuse, damage or destruction, by any person not authorised by this Contract to have access to it. Permitted Disclosure Despite anything else in this Contract: the terms of this Contract may be disclosed to the public, including disclosure on the internet, provided such disclosure does not involve trade secrets or proprietary information of a party where disclosure would result in a significant commercial disadvantage to that party; and If requested by the Auditor-General or the Ombudsman of the State of Victoria in the course of performing their statutory duties, Confidential Information and the terms of this Contract may be disclosed to the Auditor-General or the Ombudsman as the case may be. Intellectual property The Intellectual Property in all material prepared or developed by the Contractor prior to the Commencement Date (including all documents, reports, charts, drawings, data bases, software, source codes, models systems, slides, tapes and specifications), and improvements to such Intellectual Property developed during the Services, vest in and are owned by the Contractor. Where the Services comprise any Intellectual Property referred to under clause 8.1 or of a third party, the Contractor grants to the State of Victoria and DVC accepts on behalf of the State of Victoria, a non-exclusive, irrevocable, world-wide, royalty free licence to use, reproduce, publish, communicate to the public, adapt and exploit that Intellectual Property to the extent necessary to enable the State of Victoria to enjoy the full benefit of the Services, the Project and this Contract. The Contractor assigns to the State of Victoria exclusive ownership of all Intellectual Property created, discovered, brought into existence or otherwise acquired, as a result of, for the purposes of, or in connection with the Project, the Services or this Contract (including in all documents, reports, charts, drawings, data bases, software, source codes, models, systems, slides, tapes graphs notes and specifications) and ownership of such Intellectual Property vests exclusively in the State of Victoria. In order to facilitate assignment by the Contractor to the State of Victoria of the copyright in all written material (including software) under clause  REF _Ref61346597 \r \h 8.3 (and in accordance with Section 197 of the Copyright Act 1968) the Contractor must: procure from its employees, consultants and contractors, a written assignment to it of all copyright in all written materials (including software), created or otherwise brought into existence by its consultants or contractors in any way relating to the Project, the Services or this Contract; and do all things reasonably necessary to assign the copyright in such materials to the State of Victoria, and must procure its consultants and contractors to do likewise. In relation to any work in which the Contractor or a person engaged by it has a moral right the, Contractor consents, and will procure the consent of any person engaged by it, to DVC doing or omitting to do anything that, but for this consent, would constitute an infringement of those moral rights including, reproducing, publishing, performing, transmitting, exhibiting, adapting, altering or in any way changing or using the work in which the Intellectual Property rights subsist: with or without attribution of authorship; with or without any other materials comprising copyright; with or without any other text, data, sounds or images; with no title, the same tile or any other title; in any medium or context, in any way that DVC sees fit. The Contractor warrants that it has the right to grant any licence that it is required to provide under clause 8.2. On or before the Completion Date, the Contractor must deliver to DVC all material in which Intellectual Property has vested in the State of Victoria pursuant to clause 8.3. The Contractor may be excused from compliance with clause 8.7 where the Supervising Officer has given written approval for the material to be retained. Status of Contractor The Contractor is engaged as an independent contractor. Nothing in this Contract creates any agency or employment relationship between the Contractor and the State of Victoria or DVC. The Contractor has no authority to incur any obligation or make any representation on behalf of the State of Victoria or DVC, except with express written instructions from DVC. Indemnity and insurance The Contractor indemnifies DVC against all Liability DVC may incur in respect of any Claim, including Claims in respect of: personal injury or the death of any person; loss of or damage to any property; breach of third party Intellectual Property rights; and a contravention of the requirements of clause 7 or the applicable privacy legislation, arising in any manner out of a breach by the Contractor of its obligations under this Contract, any negligent or unlawful act or omission or wilful misconduct of the Contractor or any personnel employed or retained by the Contractor in the course of providing the Services. For the purposes of clause  REF _Ref64360646 \r \h 10.1: Liability includes all damages, costs, expenses or loss; Claim includes all demands, rights, actions, suits or proceedings of any kind; and The Contractors liability under clause 10.1 will be reduced to the extent that Liability is caused or contributed to by the negligent or unlawful act or omission of DVC. The indemnities in this clause 10 are continuing obligations, separate and independent from other obligations of the parties and survive termination of this Contract. It is not necessary for DVC or the State of Victoria to incur expense or make payment before enforcing a right of indemnity under this clause. The Contractor must perform and observe all obligations and requirements required of the Contractor by Law in relation to itself and its employees, including but not limited to paying all necessary wages, superannuation payments, taxes (including GST), duties and imposts, taking out and continuing all necessary insurances, including compliance with the Accident Compensation Act 1985 (Vic) by registration as an employer and the payment of any WorkCover premium required to be paid under that act, and complying with all occupational health and safety requirements. The Contractor must maintain public liability insurance coverage during the currency of this Contract, with an insurer authorised under the Insurance Act 1973, for at least the amount set out in Item 9(a) of Part 1, or if no amount is so stated, $10,000,000 for any one occurrence. If the Services to be provided include the provision of goods, the Contractor must on and from the Commencement Date effect product liability insurance coverage for at least the amount, if any, set out in Item 9(b) of Part 1. The Contractor must maintain professional indemnity insurance coverage from the Commencement Date, with an insurer authorised under the Insurance Act 1973, for at least the amount set out in Item 10 of Part 1, or if no amount is so stated, $5,000,000 for any one claim. The Contractor must maintain such insurance coverage for at least six years, or for such lesser period as may be stated in Item 11 of Part 1, after the Completion Date of this Contract. The Contractor must provide certificates of currency, or such other documentary evidence to the satisfaction of DVC with respect to the currency of insurances it is required to maintain under this Contract if the Supervising Officer requests it in writing. Dispute resolution Application of procedure Each of the parties will use its best endeavours to co-operatively resolve a dispute. Discussions between the parties If a dispute arises, either party may give a notice of the dispute in writing to the other party. The dispute must then be referred immediately to the Contractor's Principal Officer and the Supervising Officer for resolution. Referral to a Panel If the dispute is not resolved within three (3) days of such referral, the dispute will be referred to a panel (Panel) for resolution. Each party must nominate a senior representative for the Panel within three (3) days of the referral to the Panel in accordance with this clause. If a dispute is referred to the Panel in accordance with clause 11.3, the Panel will meet to resolve the dispute unless the Panel agrees to resolve the dispute without the need for a meeting. The Panel may determine its own procedures for meetings. Decisions of the Panel may only be made by unanimous contract of the members of the Panel. Any decision of the Panel will be final and binding on the parties and will be provided in writing to the parties. If the Panel does not resolve the dispute within ten (10) days of it being referred to the Panel, the parties agree that the dispute must be referred to mediation. Conduct of Mediation The mediator may be appointed either by contract between the parties or, failing such contract within five (5) days of expiry of the period set out in paragraph 11.6, by the president for the time being of the Law Institute of Victoria. The parties agree that: each will bear their respective costs of the mediation save that the mediator's fee, fees for mediation rooms and costs of shared equipment facilities and services of the mediation will be shared equally; the venue for the mediation will be agreed between the parties or, failing such contract, will be nominated by the mediator; each party may be legally represented if they so wish; and the mediation will be conducted without prejudice and complete confidentiality will be preserved in respect of the mediation and any documents and information used at or in relation to the mediation. Condition Precedent It is a condition precedent to the commencement to any litigation of any dispute that the issues arising in that dispute must have been referred in accordance with the procedures set out in clauses 11.3 to 11.8. If the dispute or difference has not been resolved or mediated within sixty (60) days (or some other time agreed by the parties) of receipt of the notice specified in clause 11.2, the condition precedent established by clause 11.9 will be deemed to have been satisfied. Performance of obligations pending resolution of dispute Prior to the resolution of a dispute, the parties must continue to perform their obligations under this Contract. Termination Termination for convenience DVC may terminate this Contract at any time and in its sole discretion by the giving of twenty-eight (28) days prior written notice to the Contractor. Termination by DVC DVC may, by notice to the Contractor, immediately terminate this Contract if the Contractor is in breach of its obligations under this Contract, and such breach is not remedied within seven (7) days of the receipt of a notice from DVC, or if such breach is remedied but repeated at any time after the receipt of such a notice. If an Insolvency Event occurs in relation to the Contractor, DVC may terminate this Contract immediately by notice to the Contractor, without prejudice to any other rights DVC may have. The rights given by this clause 12.3 are in addition to any other rights and may be exercised notwithstanding that there has been no breach of this Contract. Termination by the Contractor The Contractor may terminate this Contract immediately by notice to DVC if: DVC has failed to make a payment in breach of clause 4, except with respect to any payment or portion that DVC disputes under clause 11; and the breach in clause 12.4(a) is not remedied within thirty (30) days of receipt of a notice of the breach from the Contractor. Obligations of the Contractor upon termination Upon termination of this Contract, the Contractor must immediately: take all reasonable steps to cease providing the Services in a manner that will not cause any unnecessary or unreasonable loss or inconvenience to DVC; take all available steps to mitigate any loss resulting from termination; and deliver to DVC any documentation provided to the Contractor by DVC or produced by the Contractor under this Contract, whether in the course of preparation or completed by the Contractor at the date of termination, which have not been supplied to DVC and ensure that it is able to do so in respect of such documentation prepared by any Contractor or consultant employed by the Contractor. DVC may make full use of all documentation prepared by the Contractor (or any consultant or contractor engaged by the Contractor) pursuant to and for use under this Contract, regardless of any dispute in existence between DVC and the Contractor over any unpaid fees or other matter and the Contractor hereby waives any lien or similar right which might otherwise be attached to such documentation. Payment upon termination If DVC terminates this Contract under clause 12.1 or the Contractor terminates this Contract under clause 12.4, DVC will only be liable to pay the Contractor for: payment for the Services carried out prior to the date of termination; and an amount equal to the extra costs necessarily incurred by the Contractor as a result of the termination, provided that DVC will not be liable any profits forgone or for any amount in excess of the total amount that would otherwise have been payable under the Contract if it had not been terminated. If DVC terminates this Contract under clause 12.2 or 12.3, DVC will only be liable to pay the Contractor for the Services carried out prior to the date of termination, and subject to clause 12.10. If DVC terminates this Contract under clause 12.2 or 12.3, the Contractor must pay to DVC the additional costs incurred by DVC in completing the Project. For the purposes of this clause additional costs means the amount by which the costs incurred by DVC in completing the Project or attempting to complete the Project, exceed the balance of the contract price that would have been payable by DVC to the Contractor if this Contract had not been terminated. Those costs include: the additional cost to DVC of having the Services or equivalent services provided by an alternative service provider to complete the Project, including costs of any acceleration or expedited methods used in an attempt to mitigate any delay caused by the Contractor; all reasonable charges for administering any related trade contract or consultancy contract; and all legal costs incurred by DVC (on an indemnity basis) associated with the termination. Any amount due to it from the Contractor under clause 12.9 may be set off against any amount due under clause 12.8. If the amount due to DVC under clause 12.9 is not ascertainable at the time that payment would otherwise be due to the Contractor under clause 12.8, DVC may retain such amount as DVC reasonably estimates will become due to it under clause 12.9 until the actual amount has been determined. If the amount payable by the Contractor to DVC under clause 12.9 exceeds the amount payable by DVC to the Contractor under clause 12.8, the difference is a debt due and payable by the Contractor to DVC Condition precedent to payment It is a condition precedent to any payment to the Contractor of any outstanding amount as at the date of termination that the Contractor has fully complied with its obligations under clause 12.5. Miscellaneous Any termination of the Contractor's appointment under this Contract will not prejudice or affect the accrued rights, claims or liabilities of either party under this Contract. Resources Unless authorised by the Supervising Officer in writing, the Contractor will not access or utilise any of the resources of the Department for Victorian Communities, including without limitation, its employees or premises. Notices Any notices to be served on a party to this Contract may be served by: hand on the Supervising Officer or Contractor's Principal Officer; or pre-paid post to the address of the party to be served set out in item 12 or 14 of Part 1 or to such address as notified by the relevant party in writing from time to time; or facsimile forwarded to the facsimile number of the party to be served set out in item 13 or 15 of Part 1 or to such facsimile number as notified by the relevant party in writing from time to time. A notice given to a party in accordance with this clause is treated as having been given and received: if delivered, on the day of delivery if delivered before 4.00 pm on a Business Day, otherwise on the next Business Day; if sent by pre-paid post, on the third day after the day on which it was posted; and if sent by facsimile and the transmission report states that it was sent in full and without error, on the day of transmission if that report states that the transmission was completed before 4.00 pm on a Business Day, otherwise on the next Business Day. Governing law The laws of the State of Victoria govern this Contract. Subject to clause 11, each party submits to the non-exclusive jurisdiction of the courts of the State of Victoria and the courts of appeal from those courts. If any provision of this Contract is or becomes illegal, invalid or unenforceable (Ineffective), it will be read down to the extent necessary to ensure that it is not Ineffective. If the offending provision cannot be so read down, it will be severed. In any event, the remainder of this Contract will be construed so as to ensure that it remains effective to the greatest extent possible. Entire contract This Contract constitutes the entire agreement between the parties and supersedes all prior representations, contracts, statements and understandings, whether verbal or in writing. Joint and several liability If the Contractor is a partnership or joint venture (or consortium) of two (2) or more persons, all such persons are jointly and severally liable to DVC for the fulfilment of the terms of this Contract. The Contractor's Principal Officer has authority to bind the partnership or joint venture (or consortium) and each of its members. Where the Contractor or any part of it is a partnership, this Contract will not automatically terminate upon death, retirement or resignation of one or more members of such partnership. The composition or the constitution of the partnership or joint venture (or consortium) may not be altered without notice to DVC. No assignment or subcontracting Except with the prior written consent of DVC, the Contractor may not assign the whole or any part of the Contractor's obligations under this Contract or assign or sub-contract the whole or any part of the works or tasks associated with the Project. Under no circumstances may in the Contractor assign or subcontract any part of the Contractor's obligations and terms that are inconsistent with the terms of this Contract, including without limitation any provisions that deal with Intellectual Property or Confidential Information. Scope or timing of services If either party becomes aware of any matter which may change the amount of work or time involved in completing the Project, that party must give written notice of that matter to the other party as soon as reasonably practicable. Variation of contract This Contract may only be varied with the written consent of each party. Conflict of interest The Contractor warrants that at the Commencement Date, to the best of its knowledge, having made all reasonable inquiries, no conflict of interest exists in relation to this Contract or is likely to arise during the period of this Contract. The Contractor must inform DVC as soon as it becomes aware of any matter that may give rise to a conflict of interest, during the currency of this Contract. Any information provided by the Contractor under clause 21.1 will be treated in confidence by DVC. Waivers A waiver of any provision of, or right or obligation under, this Contract must be in writing and is effective only to the extent specifically described in such writing. If a party waives its rights in relation to a breach of any covenant, obligation or provision in this Contract by the other party, that waiver does not operate as a waiver of another or a continuing breach of that covenant, obligation or provision or of any other covenant, obligation or provision in this Contract. Employment Policy The Contractor acknowledges that it must not act in a manner that is contrary to the Victorian Governments Ethical Employment Policy, the specific requirements of which are set out in this clause in so far as they relate to the Contractor. The Contractor must not engage in any practice that is contrary to any industrial Law or any award or other industrial instrument made under of pursuant to such Laws that is applicable to the Contractor. The Contractor and any person engaged in the provision of the Project Services must not: engage in unethical work practices; or engage employees or sub-contracted workers upon terms and conditions that are not commensurate with industry standards generally applicable in Victoria. If the Contractor is in breach of this clause, DVC give notice to the Contractor suspending the operation of this Contract, or the performance of DVCs obligations under it immediately and for so long as the breach continues. These rights are in addition to any rights DVC may have under clause  REF _Ref64283080 \r \h 12. Force Majeure If any party is unable, wholly or in part, by reason of a Force Majeure Event to carry out any of its obligations under this document, the obligation will be suspended so far as it is affected by such Force Majeure during the continuance of it. The party affected must: give the other party prompt notice of the Force Majeure Event; and use best endeavours to remove such Force Majeure Event and/or the effect of it as quickly as possible. If the event of Force Majeure continues for more than 30 days, either party may terminate this document by notification in writing to the other party. Schedule A Confidentiality Undertaking This Deed is made on the day of 200 I, ________________________________________________, am an employee, agent or contractor of [ ] ("Contractor"). I have been engaged by the Contractor to perform services ("Services") in relation to the Project defined in the contract between the State of Victoria through the department for Victorian Communities ("DVC") and the Contractor dated [ ] (the Contract). I agree with the Contractor that I will not communicate, publish or release any Confidential Information, as defined in the Contract, except as directed by DVC, as required by law, or for the purpose of the Contractor's performance of the Project. I irrevocably authorise DVC to enforce this undertaking and I acknowledge that DVC is entitled (in addition to any entitlement to damages) to seek an injunction or other equitable relief for any actual or threatened breach by me of this Deed: (a) without the need for DVC to prove any special damage; and (b) DVC need not provide any security in respect of any damages that I or anyone else might incur as a result of an injunction being granted. Executed as a deed on the date set out at the commencement of this Deed. SIGNED SEALED AND DELIVERED in the presence of:))) Sign here Signature of witness Name of witness (block letters)  [INSTRUCTION: TO BE SIGNED BY THE CONTRACTORS EMPLOYEE OR AGENT (not to be signed by the Contractor) In accordance with clause 7.6, if requested by DVC, the Contractor must procure from each person employed or engaged by it in provision of the Services a Confidentiality Undertaking in the form set out above. A copy of each Confidentiality Undertaking must be delivered to the Supervising Officer.] Schedule B Detailed Description of Services The Contractor will provide the Services more fully set out in: Part 1 Project Brief Part 2 Proposal Schedule C Project Schedule Use this schedule to set out the timelines for delivery of each component of the project if the timelines are not clear from Schedule B. Where possible payments to the Contractor should be linked to delivery of Project milestones in Part 2.   PAGE 28 Commercial Contract Version 1.1 27 July 2005 Department for Planning and Community Development Level 15, 1 Spring Street Melbourne, Victoria    If the Contractors employees or contractors would otherwise own Intellectual Property in any work created under this Contract, the Contractor will ensure that the rights in any Intellectual Property are assigned to the Contractor. DVC will own all IP created under this Contract. The Contractor continues to own its existing IP, but if the Contractor incorporates it into any Services delivered under this Contract, then DVC may use it for the purposes of this Contract. VGPB Guidelines require that the terms of certain contracts be made available to the public in order to promote probity and open accountability for public spending. The Contractor must keep all Confidential Information secure. 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