In this Agreement, capitalised words have the meaning given in the Details section, unless otherwise defined below.
(a) You must, in accordance with this Agreement:
(i) complete each Milestone to our satisfaction; and
(ii) pay all the costs for the Work which are not covered by the Milestone Amounts paid by us.
(b) Subject to clause 4, we must pay to you the Milestone Amounts.
(c) We may extend, by not longer than the Permitted Extension Period, any date for completion of a Milestone.
(d) If the Work involves you preparing a report, the report will be provided in a style consistent with our Writing Style Guide and in a format suitable for publication and we may notify you within 10 business days from receiving a report if we do not accept it, in which case we may require you to submit a revised report or provide additional information, or we may immediately terminate this Agreement in accordance with clause 14.
(e) If you provide research or evaluation as part of the Work, you will provide us with all raw data collected as part of the Work, in both identified (for our reference) and de-identified (for publication) form and ensure you obtain all permissions, consents and licences to enable this.
(f) Data provided to us must be provided in a machine readable format, with a data dictionary and with metadata in accordance with the DataVic Access Policy Standards and Guidelines.
(g) You must maintain, secure, not encumber or dispose of, and use for the purposes of the Work, until fully depreciated, any tangible or intangible property with a value in excess of $5,000, purchased, leased or created using any Milestone Amount (Asset).
(h) During the Term and for seven years after the expiration or termination of this Agreement:
(i) you must keep all records relevant to this Agreement, including all Background and Project Intellectual Property and accounting records (Project Records); and
(ii) we or our auditor may, at our own cost and upon reasonable notice, conduct inspections and audits of the Project Records and take copies of the Project Records.
(a) You must carry out the Work in a safe and professional manner and:
(i) in a manner that ensures the safety of persons and property;
(ii) in accordance with all laws, codes and standards, and our lawful requirements or policies, applicable to the provision of the Work, including occupational, health and safety laws and standards, the Code of Conduct for Victorian Public Sector Employees 2015 (if relevant), environmental laws and notices from the Environment Protection Authority or other regulatory body; and
(iii) on request, provide evidence of compliance with this clause.
(b) You must use your best endeavours to have systems, equipment and/or procedures in place to minimise safety and environmental impacts and immediately rectify any breach of any standard or procedure to our satisfaction.
(c) You must ensure that any information or representation provided by you about your health and safety or environmental practices in any application document relating to the Work is accurate and you comply with any such practices in the performance of this Agreement.
(d) You must not do or fail to do anything that may damage or bring into disrepute, or attract public or media attention which may be detrimental to, our or the Victorian Government’s reputation or messages.
(e) You must immediately notify us of any accident, notifiable incident, injury, near miss, safety breach or occurrence of environmental damage.
(a) You must submit to us a tax invoice:
(i) within 30 days from completion of each Milestone, or as we direct; and
(ii) for the relevant Milestone Amount.
(b) Each invoice must be accompanied by the Required Evidence and any other evidence we reasonably require to substantiate the completion of a Milestone.
(c) We will pay all invoiced amounts which comply with clauses 4.1(a) and 4.1(b), and are not in dispute, within 30 days of receipt of the invoice.
You are not entitled to payment for any tasks undertaken in respect of any Milestone or reimbursement of any kind if:
(a) you have not invoiced us within 90 days after completion of the relevant Milestone;
(b) such payment would exceed the relevant Milestone Amount, to the extent of such excess; or
(c) in our opinion:
(i) this Agreement has not been complied with; or
(ii) the Work is not making satisfactory progress.
(d) You must reimburse us for any amount already paid by us that, in our opinion, was:
(i) not used for, or applied to, the Work in accordance with this Agreement;
(ii) paid in circumstances where we are not satisfied that the Work was or is making satisfactory progress; or
(iii) paid in circumstances where you have not complied, or subsequent to the payment do not comply, with this Agreement.
Without disadvantage to any other rights, we may deduct from amounts otherwise payable to you, amounts which are payable to us, whether under this Agreement or otherwise.
(a) We will, on demand by you, pay simple interest on a daily basis on any overdue amount, at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic).
(b) For the purpose of clause 4.4(a) overdue amount means an amount (or part) not in dispute, due and owing under a valid tax invoice and outstanding for more than 30 days from the date of receipt of the invoice or the date the amount was no longer disputed, as the case may be.
(a) In this clause 5, additional defined terms have the meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(b) Unless otherwise specified, the consideration specified in this Agreement excludes any amount for GST.
(c) If a Supply under this Agreement is subject to GST, the Party paying for the Supply must pay to the Party making the Supply (supplier) an additional amount equal to the amount payable multiplied by the applicable GST rate (additional amount).
(d) The additional amount is payable at the same time as the consideration for the Supply is payable or to be provided, subject to receipt of a Tax Invoice from the supplier in relation to the Supply.
(e) If the additional amount differs from the amount of GST payable by the supplier, the Parties must adjust the additional amount.
(f) If a Party is entitled to be reimbursed or indemnified under this Agreement, the amount to be reimbursed or indemnified excludes any amount for GST for which the Party is entitled to an Input Tax Credit.
(a) Unless we otherwise agree in writing, you must prepare and submit to us all reports required in accordance with any reporting criteria, templates and directions notified by us, including a final report (to be submitted at the final Milestone Date) in a form suitable for public dissemination.
(b) We will notify you within 10 business days from receiving a report if we do not accept the report, in which case we may require you to submit a revised report or provide additional information, or we may immediately terminate this Agreement in accordance with clause 14.1.
(c) After the expiry of this Agreement, you must, if we request, promptly provide information in relation to the Work and other information reasonably required by us for our data collection needs.
(a) Subject to any insurance requirements set out in the Details, you must, at your own cost, throughout the Term or longer if required by law, maintain all relevant insurances that a prudent supplier in your industry would be reasonably expected to maintain in order to ensure the successful completion of your obligations under this Agreement including:
(i) public and product liability insurance of $10 million per occurrence; and
(ii) professional indemnity insurance of $5 million per claim.
(b) Any indemnity proceeds or other payment made to or recoverable by you under any insurance policy for any damage to, loss (including loss of use) or destruction of any Asset or property associated with the Work must be promptly applied by you to ensure that such is repaired and reinstated.
(a) You indemnify us, our employees, agents and officers (Indemnified Parties) and hold us and each of them harmless against any liability and any other loss, damage (including reputational damage), claim, action or expense (including legal expense) (Loss) incurred or suffered by any of them in connection with the Agreement or the Work which arises from or in connection with:
(i) any fraudulent, wilful, unlawful, dishonest or negligent act or omission by you or your employees, agents or officers;
(ii) any breach of this Agreement by you;
(iii) any injury to, or death of, a natural person and any loss of or damage to, real or personal property caused or contributed to by you or your employees, agents or officers; or
(iv) any claim, action, demand, or proceeding by a third party against the Indemnified Parties caused or contributed to by you, your employees, agents or officers.
(b) Your liability under clause 8.1(a) to an Indemnified Party will be reduced to the extent that any negligent act or omission or wilful misconduct by that Indemnified Party directly caused the relevant Loss.
Our liability under or in connection with this Agreement is limited in aggregate to an amount equal to the total Milestone Amounts payable by us under this Agreement.
(a) You must obtain our approval prior to releasing any information concerning the Work, the Parties or this Agreement.
(b) Subject to clause 9(a), you must acknowledge our and the Victorian Government’s assistance and funding in any site signage, report, publication, announcement and the like, oral or written, regarding the Work.
(c) You must obtain our written permission prior to using our or the Victorian Government’s name, logo or endorsement (if any) in promotional material and communications relating to the Work.
(d) We may withdraw any permission given under clause 9(c) at any time, and upon notice of withdrawal you must immediately stop using our and the Victorian Government’s name, logo and endorsements.
(a) Subject to this clause 10, each Party must keep information of the other Party which, by its nature is or is described by the other Party to be confidential (Confidential Information), confidential at all times, and must not, without the other Party's written consent:
(i) disclose any Confidential Information to any person; or
(ii) use or allow any person to use any Confidential Information for any purpose other than the performance of this Agreement.
(b) A Party may disclose Confidential Information of the other Party:
(i) to the extent required by law or in connection with legal proceedings; and
(ii) to its professional advisers for purposes connected to this Agreement.
(c) We may disclose your Confidential Information for public accountability purposes or to comply with any reporting obligation.
(d) Each Party consents to the other Party publishing or making available information in relation to the Parties or the Work as may be required by the Auditor-General, to comply with the Freedom of Information Act 1982 (Vic) or otherwise by law.
(a) For the purposes of this clause 11, Personal Information and public sector data have the meanings given to them in the Privacy and Data Protection Act 2014 (Vic) (Privacy Act).
(b) You must, and must procure that your employees, agents, officers and subcontractors comply with:
(i) the Information Privacy Principles set out in the Privacy Act;
(ii) any privacy statement issued by us from time to time (as published on our website);
(iii) protective data security standards (including the Victorian Protective Data Security Framework established under Part 4 of the Privacy Act); and
(iv) any other applicable laws, principles, policies and codes dealing with the collection, holding, use, disclosure, storage, management, transfer or granting of access rights to Personal Information and public sector data, in relation to any Personal Information and public sector data collected, held, used, managed, disclosed, transferred or stored in relation to this Agreement and in the same way and to the same extent as we would have been bound had the relevant act been done by us (where applicable).
In this clause 12.1:
(a) Intellectual Property includes patents, know-how, copyright, designs, semiconductor or circuit layout rights, trade marks, trade secrets, data, Confidential Information, business or company names and other proprietary rights or any right to registration of such rights, whether created before or after the date of this Agreement and whether protected under common law or statute; and
(b) Project Intellectual Property means all Intellectual Property including reports, case studies and background information, photographs, audio visual material and other deliverables specified in this Agreement produced by or for you in the course of the Work.
You warrant to us that you have all necessary rights and consents (including any necessary consents to infringe moral rights) in relation to Project Intellectual Property or otherwise to perform your obligations under clause 12.4(a).
(a) The Parties acknowledge that subject to clause 12.4(a), all Project Intellectual Property vests in you and remains your property; and
(b) our Intellectual Property remains our property at all times.
(a) We may use or exploit the Project Intellectual Property and all modifications to it made by you (Modifications) for any purpose consistent with our general objectives and you grant to us a worldwide, irrevocable, non-exclusive, royalty-free, perpetual licence to use, reproduce, disclose, make public, modify or otherwise exploit, as well as to sublicense:
(i) the Project Intellectual Property;
(ii) any Modifications; and
(iii) any Intellectual Property that is incorporated into any outputs of the Work, whether owned by you or a third party (Background Intellectual Property), to the extent such Background Intellectual Property is so incorporated or otherwise required to enable the Project Intellectual Property to be exploited for those purposes.
(b) For the avoidance of doubt, our right to sub-license under clause12.4(a) (a) includes the right to do so under any form of creative commons licence (available at creativecommons.org.au).
(c) Without limiting clause 12.4(a), you grant to us a worldwide, irrevocable, non-exclusive, royalty-free, perpetual licence to use and reproduce your name, logo and organisational summary for promotion and reporting of the Work.
You indemnify, and must at all times keep us indemnified, against any Loss arising out of or in connection with any infringement or alleged infringement by you or us of the Intellectual Property rights of any third person relating to the Work.
(a) You must not, and must ensure your employees, agents and contractors do not, hold any office or property, be involved in any business, trade or calling, or have any obligations under any contract whereby, directly or indirectly, duties or interests are or might be created (or appear to be created) in conflict with your duties and interests under this Agreement.
(b) You must promptly notify us of any matter which may give rise to a breach of clause 13(a).
Without disadvantage to any other rights we may have, we may terminate this Agreement immediately or on a specified date by issuing a notice to you if:
(a) you become insolvent, go into liquidation, are wound up, dissolved, commit an act of bankruptcy or enter into a scheme of arrangement with any creditor;
(b) you appoint, or are appointed, an administrator or receiver;
(c) any of your officers is found guilty of breaking any law;
(d) you provide any false or misleading information to us;
(e) you are found to have misused any amounts provided to you by us;
(f) you fail to complete any Milestone to our satisfaction;
(g) you commit a material breach of any of your obligations under this Agreement and:
(i) the material breach is not capable of remedy; or
(ii) the material breach is not remedied by you within five days of being notified of the material breach by us;
(h) you commit a breach of clause 2(d), 3(a), 6(b) 10, 11 or 13; or
(i) you do anything which brings your, our or the Victorian Government's reputation into disrepute and as a consequence, in our opinion, our continued association with you will, or may, be detrimental to our or the Victorian Government’s reputation or messages, including offering us or our employees or Board members a gift, benefit or hospitality.
Despite any other term of this Agreement, we may terminate this Agreement upon 30 days’ written notice to you.
(a) If this Agreement is terminated under clause 14.1, we will pay you only for your reasonable and unavoidable direct costs of performing the Work referable to an Advance Payment (and not the Advance Payment itself).
(b) If this Agreement is terminated for any reason, you must repay to us all Advance Payments paid by us unless we paid a Milestone Amount that is not an Advance Payment after the relevant Advance Payment. You may deduct from the total of the Advance Payments to be repaid, the amount of your reasonable and direct costs of performing the Work referable to the Advance Payment.
(c) We are not liable to compensate or otherwise pay to you or any subcontractor any money that may have been incurred due to termination of this Agreement for any reason.
(a) We may at any time assign, novate or subcontract any or all of our rights and obligations under this Agreement.
(b) You must not assign, novate or subcontract this Agreement (or any rights or obligations under it) without our prior written consent, which we may withhold or give subject to conditions.
(a) This Agreement contains the entire agreement between the Parties as to its subject matter.
(b) The relationship between the Parties under this Agreement does not constitute a partnership, agency, joint venture or any form of fiduciary relationship or contract of employment.
(c) Time is of the essence in this Agreement.
(d) Waiver of any provision of or right under this Agreement must be in writing signed by the Party entitled to the benefit of the provision or right being waived.
(e) This Agreement may only be varied by written agreement signed by both Parties.
(f) Clauses 2(h), 6(c), 8, 9, 10, 11 and 12, and any other clause that by its nature is intended to survive termination, survive expiry or termination of this Agreement.
(g) You warrant to us that you have the power to enter into and perform the obligations of this Agreement without breaching any other legal rights or obligations.
(h) All notices, approvals, consents or other communications under this Agreement must be provided in writing to the other Party's Representative.
(i) This Agreement may be executed in counterparts.
(j) This Agreement is governed by the laws of Victoria, and each Party submits to the exclusive jurisdiction of the courts of Victoria.