contract for services - digital health...contract for services reference no: [add ref number]...

UNCLASSIFIED – For Public Release

v25092017


Contract for Services

Reference No: [Add ref number]

Customer

Customer Name Australian Digital Health Agency

Customer ABN 84 425 496 912

Address Level 25, 56 Pitt Street

Sydney NSW 2000

Supplier

Supplier Name Click here to enter text.

Supplier ABN Click here to enter text.

Address Click here to enter text.


.

Please be advised this contract is a draft contract indicating the nature of the

services to be provided and the standard terms and conditions that will

apply. It is not reflective of the final contract and will be subject to change

based on the particulars of any offer made by the Australian Digital Health

Agency and on the particulars of any proposed arrangement.


Commonwealth Contract - Services

Reference No: [Add ref number] of 25 v25092017


Statement of Work

C.A.1 Key Events and Dates This Contract commences on the Contract Start Date and continues for the Contract Term unless:

a) it is terminated earlier; or

b) if a Contract Extension Option is set out in the table, the Customer exercises the Contract Extension

Option, in which case this Contract will continue until the end of the extended time (unless it is

terminated earlier).

Event Date

Contract Start Date The date this Contract is signed by the last party to do so.

Contract Term This Contract commences on the Contract Start Date and continues until 30

June 2018.

Contract Extension Option Not applicable

C.A.2 The Requirement

The Customer wants the Supplier to enhance its existing proprietary software (Supplier Software) to allow

patients to more easily withdraw their consent to have uploaded to the My Health Record system any

pathology and/or diagnostic imaging reports that are requested using the Supplier Software (the Enhanced

Software). As such, the Supplier must provide the services specified in paragraphs 1 – 4 below (the

Services).

The Supplier has fully informed itself on all aspects of the work to be performed as a result of its response

to an expression of interest to provide these Services to the Customer prior to the date of this Contract. As

part of the Services, the Supplier agrees to meet each of the following requirements:

1. In order to produce the Enhanced Software, the Supplier must satisfy each of the software

enhancement requirements specified below (the Software Enhancement Requirements):

a. At the time of creating a pathology or diagnostic imaging request in the Supplier Software, the

Enhanced Software must be capable of displaying in its user interface a ‘checkbox’ (or some other

interface element as may be agreed between the Parties). The purpose for this checkbox is for the

requesting healthcare provider to indicate that the patient has withdrawn their consent to upload

the report(s) to the My Health Record system;

b. This checkbox must be labelled “Do not send reports to My Health Record” and the default state

of this checkbox must be unticked;

c. The Enhanced Software must capture and store this consent status locally and for each request,

for auditing and tracking purposes;

d. When printing a paper request, the Enhanced Software must print the statement “Do not send

reports to My Health Record” and a single checkbox. If consent has been withdrawn the Enhanced

Software must print a tick in that checkbox;

e. The checkbox and the “Do not send reports to My Health Record” statement must be printed in

any space allocated to clinical notes/history or reason for examination, and they must be in close

proximity to where the requesting healthcare provider affixes their signature to the paper





request, or in some other location on the paper request as agreed in writing between the Parties;

and

f. There must be only one consent question per request and the consent may cover many orderable

items within the requesting event.

2. The Supplier must present its design for satisfying the Software Enhancement Requirements to the

Customer, and obtain written confirmation from the Customer that the design is appropriate prior to

commencing enhancement of the Supplier Software.

3. The Supplier must, in a virtual or in-person meeting with the Customer, and prior to releasing the

Enhanced Software to the Supplier’s users, demonstrate the Enhanced Software to the Customer and

get written confirmation from the Customer that the Enhanced Software conforms to the Software

Enhancement Requirements and all other applicable requirements specified in this Contract.

4. The Supplier must make available the Enhanced Software to the users of its Supplier Software via the

general release of a new version of the Supplier Software by the date specified in the table in C.A.2 (d).

As part of this release, the Supplier must issue a communication to its users explaining the nature and

the purpose of the enhancements made to the Supplier Software, via email or some other mode of

communication to be agreed to by the Customer prior to release.

The Supplier must comply with, and require the Supplier Personnel to comply with, the behaviours

specified in:

a) the Australian Digital Health Agency Code of Conduct (the Code), available at

http://www.apsc.gov.au/__data/assets/pdf_file/0010/56359/APS-Values-and-code-of-conduct.pdf,

as if the Supplier and those Supplier Personnel were employees as defined in the Code; and

b) the Public Governance, Performance and Accountability Act 2013 as if the Supplier and those

Supplier Personnel were officials (as defined in that Act) and having the general duties of officials

under sections 25-29 of that Act.

The Supplier agrees to be fully responsible for the provision and performance of the Services and for

ensuring compliance with the requirements of this Contract, and will not be relieved of that responsibility

because of any:

a) involvement by the Customer in the provision of the Service;

b) payment made to the Supplier on account of the Services;

c) subcontracting of the Services; or

d) acceptance by the Customer of replacement Customer Personnel.

C.A.2 (a) Standards

The Supplier must:

a) provide the Services in accordance with this Contract, with due care and skill and in accordance

with best practices, including any applicable Australian Standards and any Commonwealth and

industry standards and guidelines;

b) ensure that the Services and Material are fit for purpose for which they are provided;

c) liaise with the Customer, provide any information the Customer may reasonably require and

comply with any reasonable directions of the Customer;

d) ensure that it and the Supplier Personnel, when carrying out their duties and performing work

under this Contract, do not:

http://www.apsc.gov.au/__data/assets/pdf_file/0010/56359/APS-Values-and-code-of-conduct.pdf





i. cause any unreasonable or unnecessary disruptions to the routines, procedures and

responsibilities of the Customer; or

ii. damage the reputation of the Customer, or the Commonwealth more broadly in the

Community.

C.A.2 (b) Security Requirements

The Supplier must comply with all Customer policies and procedures in relation to security.

C.A.2 (c) Workplace Health and Safety

The Supplier must comply with all Customer policies and procedures in relation to work health and safety.

The Customer and the Supplier will proactively identify and cooperate to manage any workplace health and

safety issues that may arise.

C.A.2 (d) Delivery and Acceptance

Where the Customer rejects any of the Services or any part of the Services under Clause C.C.10 [Delivery

and Acceptance] the Customer will specify a timeframe in which the Supplier is required to rectify

deficiencies, at the Supplier’s cost, so that the Services meet the requirements of the Contract. The Supplier

must comply with any such requirement. Rectified Services are subject to acceptance under Clause C.C.10

[Delivery and Acceptance].

The Supplier will refund all payments related to the rejected Services unless the relevant Services are

rectified and accepted by the Customer.

If the Supplier is unable to meet the Customer’s timeframe, the Customer may terminate the Contract in

accordance with Clause C.C.11 [Termination for Cause].

Goods:

The Customer does not require any Goods under the Contract.

Services:

Milestone Delivered To Customer Contact Details Due Date

General release of the

Enhanced Software

Ian Davies [email protected] 30 May 2018

C.A.2 (e) Facilities and Assistance Provided by the Customer

None specified.

C.A.2 (f) Customer Material

Licence to Customer Material

The Customer grants to the Supplier a fee-free, non-assignable, non-exclusive licence to exercise the

Intellectual Property Rights in the Customer Material for the sole purpose of fulfilling its obligations under

the Contract, for the purpose of creating, using and release of the Enhanced Software.

Customer Material means:

a) any material provided by the Customer to the Supplier for the purposes of this Contract,

including the documents, records, equipment, software (including source code and object

mailto:[email protected]





code), goods, images, information and data stored by any means, including all copies and

extracts of the same information provided by the Customer, including the instructions

provided as part of the Software Enhancement Requirements;

b) any improvements, modifications, derivatives or enhancements of the material referred to in

paragraph (a) above created by either the Supplier or the Customer throughout the course of

the provision of the Services;

c) any material copied or derived at any time from the material referred to in paragraphs a) or b)

above;

(i) any material located on the Customer’s website that the Customer provides to the Supplier in

connection with the Services. If this occurs, the Supplier agrees to comply with any additional

terms and conditions of use that may be required.

To the extent that the Supplier develops or creates any improvements, modifications, derivatives or

enhancements of the Customer Material as part of the provision of the Services, such improvements,

modifications, derivatives or enhancements will form part of the Customer Material and the Intellectual

Property Rights in such improvements, modifications, derivatives or enhancements automatically vest in,

and the Supplier assigns such rights to, the Customer on its creation. Accordingly, the Supplier will

undertake all acts, and execute all documents reasonably necessary to give effect to this clause.

C.A.3 Contract Price The maximum Contract Price inclusive of GST and all taxes and charges will not exceed $16,500 as set out

below plus any expenses approved in accordance with Item C.A.3(e).

C.A.3 (a) Fixed Price

Item Description Quantity Unit Price GST Exclusive

GST Component (Unit Price)

Total Price GST Inclusive

Supplier to make available the Enhanced Software

via a general release to its users

1 $15,000 $1,500 $16,500

Total Fixed Price for Services $16,500

C.A.3 (b) Variable Fees and Charges

Not applicable.

C.A.3 (c) Payment Schedule

Progress payments of the Fixed Fees and Charges (inclusive of any GST and all taxes and charges) will be

made as follows:

Due Date Milestone Payment Amount

30 May 2018 The Supplier releases, and publicly announces (via a notice on the

Supplier’s website or as otherwise agreed between the Parties) the

availability of the Enhanced Software to its users.

$16,500

C.A.3 (d) Pricing for Extension Period

Not applicable





C.A.3 (e) Expenses

The Customer will not reimburse the Supplier for any expenses (including travel, accommodation and taxi

travel).

C.A.4 Contract Managers and Addresses for Notices Contract Managers are responsible for issuing or accepting any written Notices under the Contract and are

the contact points for general liaison.

C.A.4 (a) The Customer’s Contract Manager:

The person occupying the position of: Program Manager

Currently: Ian Davies

CC: General Counsel

Postal Address: Level 25, 56 Pitt Street, Sydney NSW 2000

Telephone: 02 8298 3415

Email Address: [email protected]

CC: [email protected]

C.A.4 (b) Address for Invoices:

Addressee Name: Accounts Payable

Postal Address: Level 25, 56 Pitt Street, Sydney NSW 2000

Email Address: [email protected]

Telephone: (02) 8298 2119

C.A.4 (c) The Supplier’s Contract Manager:

Name: [insert]

Position Title: [insert]

Postal Address: [insert]

Telephone: [insert]

Mobile: [insert]

Email Address: [insert Supplier's email]

C.A.5 Supplier Personnel

For the purposes of this Contract, ‘Supplier Personnel’ means:

a) officers, officials, employees, agents and permitted subcontractors of the Supplier;

b) officers, officials, employees, agents and subcontractors of any of the Supplier’s permitted

subcontractors; and

c) includes those individuals (if any) engaged by the Supplier or its subcontractors on a voluntary basis,







who are engaged in the provision of the Services.

C.A.6 Subcontractors Note to Supplier: This section will be completed prior to an offer being made and the execution of this

Contract. This section will only be applicable if the Supplier wishes to subcontract some or all of the delivery

of the Services. If so, the details of this section will be subject to negotiation. Otherwise this section will be

marked “None specified”.

Subcontractor full legal name

Postal address Services to be performed

ACN / ABN / ARBN





Additional Contract Terms

C.B.1 Intellectual Property The definition of 'Intellectual Property Rights' in the Commonwealth Contracting Suite Glossary includes the

following rights:

a) patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks)

and domain names;

b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and

c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in

Australia or elsewhere.

Intellectual Property Rights in the Material

The Supplier warrants that it owns the Intellectual Property Rights in the Supplier Software (also specified

as Supplier Pre-Existing Material). Accordingly, the Supplier warrants that it is entitled to produce the

Enhanced Software using the Supplier Software and that any action taken by the Supplier to produce the

Enhanced Software in accordance with the terms of this Contract will not infringe any third party’s

Intellectual Property Rights or Moral Rights in the Supplier Software any way whatsoever.

The Supplier also owns the Intellectual Property Rights in the Material created under the Contract,

specifically the Enhanced Software. To the extent that the Enhanced Software incorporates Customer

Material, the Supplier will not own the Intellectual Property Rights in such Customer Material but will be

able to use that Customer Material in conjunction with the Supplier Pre-Existing Material or the Enhanced

Software created under this Contract in accordance with the license granted by the Customer under Item

C.A.2 (f).

'Supplier Pre-Existing Material' means any material including the Supplier Software specified below that is

used to produce the Enhanced Software or that is material otherwise made available by the Supplier for the

purpose of the Contract which was already in existence prior to the Contract Start Date .

Supplier Pre-Existing Material to be provided

Supplier Pre-Existing Material

Note to Supplier: This section will be completed prior to an offer being made and the execution of this

Contract. The details will include the identification of the relevant software being enhanced.

C.B.2 Confidential Information of the Supplier


Contract.

Note that once a contract is awarded to an applicant, the terms of the contract, including parts of the

contract drawn from the supplier’s submission, are not confidential unless the Agency has determined and

identified in this contract, that specific information is to be kept confidential in accordance with the

‘confidentiality test’ set out in the guidance on Confidentiality Throughout the Procurement Cycle at

http://www.finance.gov.au/procurement. In summary, there are four criteria which must be met for a

Supplier's commercial information to be considered confidential:

the information to be protected is specifically identified;





the information is commercially sensitive;

disclosure would cause unreasonable detriment to the Supplier or another party; and

the information was / will be provided on the understanding it would / will remain confidential.

Any action undertaken by the Customer in compliance with C.C.20 of the Commonwealth Contract Terms

will not be taken to be a breach of this C.B.2.

The Customer agrees that the following information meets the Commonwealth’s confidentiality guidelines

and agrees to treat the information as confidential unless required to disclose the information. The

Customer retains the right to disclose any other information contained in the Contract, including the

confidential information of the Supplier:

a) to the Customer’s advisers (including legal and financial), employees, agents, contractors and

subcontractors, engaged in, or in relation to, the performance or management of the Contract;

b) to the Customer’s internal management personnel to enable effective contract management or

auditing or proper administration, or to the Department of Health or another Australian Government

agency (including the Australian National Audit Office) where this serves the Customer’s and the

Commonwealth of Australia’s legitimate interests;

c) to the Customer’s responsible Minister or on the request of a House, or a committee or the

Parliament of the Commonwealth of Australia;

d) to comply with the Customer’s obligations under section 69 or any other applicable provision of the

Public Governance, Performance and Accountability (Establishing the Australian Digital Health

Agency) Rule 2016;

e) to the Customer’s insurers, including Comcover and Comcare;

f) where the disclosure is required by law; and

g) where the disclosure is necessary to allow the Customer’s third party service providers to discharge

their obligations to the Customer.

Information to be kept confidential

Note to Supplier: As per the note above, the section will be relevant if the Customer is satisfied that for any information

that Supplier has asked the Customer to keep confidential, that information satisfies the ‘confidentiality test’ referred to

in the above note. Otherwise this will be marked “None specified”.

C.B.3 Precedence of Documents Clause In Clause C.C.3 of the Commonwealth Contract Terms, the composition of the Contract set out in that

clause applies from the Contract Start Date and not from 9.00am, Canberra time on the date of the

Contract as set out in the clause.

C.B.4 Survival Any term by its nature intended to survive termination of the Contract survives termination of the

Contract.

C.B.5 Execution by Trustee If the Supplier acts as trustee of a trust in relation to the Contract:





a) it is liable both personally, and in its capacity as trustee of that trust; and

b) it represents and warrants that:

(i) such trust has been duly established and currently exists;

(ii) it is the duly appointed, current and only trustee of that trust;

(iii) as such trustee, it has the power to enter into and perform its obligations under this Contract;

and

(iv) it has an unqualified right of indemnity out of the assets of that trust in respect of its

obligations under the Contract.

C.B.6 GST and ABN a) If and to the extent that GST is payable on a supply made by the Supplier to the Customer under the

Contract:

(i) the Customer will pay the GST component to the Supplier at the same time as the GST

exclusive amount; and

(ii) the GST component will be calculated as an amount equal to the GST exclusive amount

multiplied by the prevailing rate of GST.

b) If and to the extent that GST is not payable on a supply made by the Supplier under this Contract:

(i) the Customer need not pay any GST component to the Supplier; and

(ii) if the Customer has already paid the GST component to the Supplier, the Supplier must

immediately refund that GST component to the Customer.

c) If any payment by the Customer to the Supplier is a reimbursement, calculated by reference to a cost

or expense incurred by the Supplier, that payment must be reduced by the amount of any input tax

credit that the Supplier (or the representative member of any GST group of which the Supplier is a

member) is entitled to claim in respect of that cost or expense.

d) If the Supplier does not provide the Customer with a document containing the Supplier's valid ABN

(or sufficient evidence of an exemption to hold an ABN) prior to any payment being due under this

Contract, the Customer may make such withholding from any such payment as required by

applicable tax legislation at the time of payment (including any GST or similar tax).

C.B.7 Superannuation


Contract. This section will only be relevant if the Supplier is a sole trader, otherwise it will be marked “Not

applicable”.

The Agency will be required to pay compulsory superannuation payments for individuals who are engaged

under a contract for service that is wholly or principally for the labour of the individual. This requirement

applies when contracting with individuals directly (e.g. not through a company or a trust).

The following factors are indicators of the circumstances in which a contract for service would be wholly or

principally for the labour of an individual, as set out in the ATO's Superannuation Guarantee Ruling

SGR2005/1 which can be found at:

https://www.ato.gov.au/law/view/document?Docid=SGR/SGR20051/NAT/ATO/00001#fp54:

the individual is remunerated (either wholly or principally) for their personal labour and skills;

the individual performs the contractual work personally (there is no right of delegation); and

https://www.ato.gov.au/law/view/document?Docid=SGR/SGR20051/NAT/ATO/00001#fp54





the individual is not paid to achieve a result (for example, the individual is paid by reference to their

hours worked rather than the 'result' required under the contract).

If the above applies, the following clause will be inserted and the Supplier will provide the relevant choice of

fund form (and other internal forms relating to superannuation processing, if any) so that the Agency has

the relevant superannuation account details for the Supplier.

“The Contract Price at Item C.A.3 [Contract Price] is inclusive of the minimum superannuation

contributions which will be made by the Customer to a complying superannuation fund under the

superannuation guarantee legislation so that a superannuation guarantee charge does not arise

under that legislation.”

C.B.8 Insurance a) The Supplier must effect and maintain, and must ensure that its subcontractors effect and maintain,

on and from the date of this Contract:

(i) public liability insurance coverage for any one occurrence for at least the amount set out in the

table below;

(ii) if this Contract requires the provision of goods, product liability insurance coverage for at least

the amount set out in the table below; and

(iii) if this Contract requires the provision of services, professional indemnity insurance coverage

for any one claim for at least the amount set out in the table below,

with an insurer authorised under any applicable law. The Supplier must provide the relevant

insurance policies or certificates of currency for the insurances set out in the table below, if the

Customer so requests from time to time, and, in any event, at the Commencement Date and each

anniversary of the Commencement Date thereafter (if applicable). Any insurance policies that

provide cover on a ‘claims made’ basis must be maintained for no less than seven (7) years after the

completion of the relevant Services. Any insurance policies that provide cover on an ‘occurrence’

basis must be maintained during the Contract Term.

Type Coverage

Public Liability Insurance $10,000,000

Product Liability Insurance $10,000,000

Professional Indemnity Insurance $5,000,000

Workers Compensation Insurance As required by law

b) This clause survives the expiration or earlier termination of this Contract.

C.B.9 Indemnity a) To the extent permitted by Law, the operation of any legislative proportional liability regime is

excluded in relation to any claim against the Supplier under or in connection with this Contract.

b) The Supplier indemnifies the Customer, its employees, other officials, officers and agents (each an

Indemnified Person) from and against any:

(i) loss or liability incurred by the Indemnified Person;





(ii) loss of or damage to property of the Indemnified Person; and

(iii) loss or expense incurred by the Indemnified Person in dealing with any claim against it

including legal costs and expenses on a solicitor/own client basis and the cost of time spent,

resources used or disbursements paid by the Indemnified Person,

arising in connection with:

(A) any act or omission by the Supplier or the Supplier Personnel in connection with this

Contract, where there was fault (including any negligent or otherwise tortious act or

omission) on the part of the person whose conduct gave rise to that liability, loss,

damage or expense;

(B) any breach by the Supplier of its obligations or warranties under this Contract; or

(C) any allegation that the provision of any Goods and/or Services, Supplier Pre-Existing

Material or Contract Material infringes the Intellectual Property Rights of any person.

c) The Supplier’s liability to indemnify the Indemnified Person under this Clause C.B.9 will be reduced

proportionately to the extent that any negligent or other tortious act or omission of the Customer

contributed to the relevant liability, loss, damage or expense.

d) The right of the Indemnified Person to be indemnified under this Clause C.B.9:

(i) is in addition to, and not exclusive of, any other right, power or remedy provided by law; and

(ii) does not entitle the Customer to be compensated in excess of the amount of the relevant

liability, loss, damage or expense.

e) The Supplier agrees that the Customer will be taken to be acting as agent or trustee for and on behalf

of its officers, officials, employees and agents from time to time.

f) This clause survives the expiration or earlier termination of this Contract.

C.B.10 Termination or Reduction for Convenience a) In addition to any other rights the Customer has under the Contract, the Customer may at any time

terminate the Contract or reduce the scope or quantity of the Services by providing a Notice to the

Supplier. If the Customer issues a Notice under this clause, the Supplier must comply with any

reasonable directions given by the Customer.

b) The Contract will terminate, or the scope or quantity of the Services will be reduced, in accordance

with the Notice provided under paragraph (a) above and the Supplier must mitigate all loss and

expenses in connection with the termination or reduction in scope (including the costs of its

compliance with any reasonable directions).

c) If the Customer issues a Notice under this clause, the Customer will pay the Supplier Services

accepted in accordance with the Contract before the effective date of termination or reduction and

for any reasonable costs the Supplier incurs that are directly attributable to the termination or

reduction, provided the Supplier substantiates these costs to the satisfaction of the Customer. Under

no circumstances will the total of all payments to the Supplier exceed the Contract Price and the

Supplier will not be entitled to loss of anticipated profit for any part of the Contract not performed.

d) Within 5 business days of the expiry or termination of the Contract, the Supplier must return the

Customer's confidential information and the Customer's Material to the Customer.

C.B.11 Additional Privacy Provisions a) In this clause:





(i) Personal Information; and

(ii) Government Related Identifier,

have the same meaning as in the Privacy Act 1988 (Cth)

b) The Contractor must not:

(i) use or disclose any Personal Information, obtained from the Customer, for the purposes of

direct marketing; or

(ii) disclose or transfer any Personal Information, obtained from the Customer, to a person who is

not in Australia or an external Territory.

c) To the extent that the Supplier has access to or handles any Government Related Identifier in

connection with this Contract, the Supplier must only use and disclose the Government Related

Identifier to the extent that is necessary for the Supplier to provide the Services or otherwise

perform its obligations under the Contract and only as permitted as follows:

Permitted use of Government Related Identifier

Not applicable

CB.12 Counterparts a) This Contract may be executed in counterparts, each of which shall be deemed to be an original and

all of which, taken together, shall constitute one and the same agreement.

b) The Parties may exchange counterparts of executed copies of this Contract by electronic mail. The

Parties agree that the electronic receipt of such executed counterparts will have the same effect as if

the Parties had exchanged an original Contract executed by the Parties.





Contract Annex 1 – Supplementary Information

None specified.





Commonwealth Contract Terms

Version 2, Published 1 July 2015

Some terms used in these Commonwealth Contract Terms

have been given a special meaning.

Their meanings are set out either in the Commonwealth

Contracting Suite Glossary or in the relevant Commonwealth

Contract.

Background

The Customer requires the provision of certain Goods and/or

Services.

The Supplier has fully informed itself on all aspects of the

Customer’s requirements and has responded representing that

it is able to meet the Requirement.

C.C.1 Relationship of the Parties:

Neither party is the employee, agent or partner of the other

party. Neither party, by virtue of this Contract, is authorised to

bind or represent the other party.

In all dealings related to the Contract, the parties agree to:

(a) communicate openly with each other and co-operate in

achieving the contractual objectives; and

(b) act honestly and ethically; and

(c) comply with reasonable commercial standards of fair

conduct; and

(d) consult, co-operate and co-ordinate activities to identify

and address any overlapping work health and safety

responsibilities aimed at ensuring the health of workers

and workplaces.

C.C.2 Entire Agreement:

The Contract represents the Parties’ entire agreement in

relation to the subject matter. Anything that occurred before

the making of this Contract shall be disregarded (unless

incorporated into the Contract in writing). However, the

Supplier represents that the claims made in its Response to the

ATM were correct when made and remain correct.

No agreement or understanding varying or extending the

Contract is legally binding upon either Party unless in writing

and agreed by both Parties.

If either Party does not exercise (or delays in exercising) any

of its contractual rights, that failure or delay does not operate

to prejudice those rights.

C.C.3 Precedence of Documents:

The Contract is comprised of:

(a) Additional Contract Terms (if any);

(b) Statement of Work;

(c) Commonwealth Contract Terms;

(d) Commonwealth Contracting Suite Glossary; and

(e) Contract Annex 1 - Supplementary information (if any).

as at 9:00am, Canberra time, on the date of the Contract,

unless otherwise agreed in writing between the parties.

If there is ambiguity or inconsistency between documents

comprising the Contract, the document appearing higher in the

list will have precedence.

C.C.4 Survival:

Clauses C.C.9 [Not Used], C.C.18 [Supplier not to make

representations], C.C.20 [Compliance with Commonwealth

Laws and policies] and clause C.B.1 [Intellectual Property]

(if included) survive termination or expiry of the Contract.

C.C.5 Governing Law:

The laws of the Australian Capital Territory apply to the

Contract.

C.C.6 Conflict of Interest:

The Supplier has either declared any real or perceived

conflicts of interest that might arise; or states that no conflicts

of interest exist, or are anticipated, relevant to the performance

of its obligations under the Contract.

If any conflict or potential conflict arises during the Contract

Term, the Supplier will immediately notify the Customer and

comply with any reasonable Notice given to the Supplier by

the Customer in relation to the conflict.

C.C.7 Assignment:

The Supplier may not assign any rights under the Contract

without the Customer’s written consent. To seek consent, the

Supplier must provide the Customer with a Notice, which

includes full details of the proposed assignee and the rights the

Supplier proposes to assign.

To decline consent, the Customer must provide a Notice to the

Supplier, setting out its reasons, within twenty-eight (28)

calendar days of receiving the Notice seeking consent.

Otherwise, the Customer is taken to have consented.

C.C.8 Subcontracting:

Subcontracting any part of, or the entire Supplier’s obligations

under the Contract, will not relieve the Supplier from any of

its obligations under the Contract.

The Supplier must ensure that Subcontractors specified in

Item C.A.6 [Subcontractors] (if any) perform that part of the

Services Specified in that item.

The Supplier must make available to the Customer the details

of all subcontractors engaged to provide the Goods and/or

Services under the Contract. The Supplier acknowledges that

the Customer may be required to publicly disclose such

information.

The Supplier must ensure that any subcontract entered into by

the Supplier, for the purpose of fulfilling the Supplier’s

obligations under the Contract, imposes on the subcontractor

the same obligations that the Supplier has under the Contract

(including this requirement in relation to subcontracts).

[C.C.9 Not Used]

C.C.10 Delivery and Acceptance:

The Supplier must provide the Goods and/or Services as

specified in the Statement of Work and meet any requirements

and standard specified in the Statement of Work.

The Supplier must promptly notify the Customer if the

Supplier becomes aware that it will be unable to provide all or

part of the Goods and/or Services specified in the Statement of

Work and advise the Customer when it will be able to so.

Any Goods must be delivered free from any security interest.

Unless otherwise stated, Goods must be new and unused. Any

Services must be provided to the higher of the standard that

would be expected of an experienced, professional supplier of

similar services and any standard specified in the Statement of

Work.

The Customer may reject the Goods and/or Services within

fourteen (14) calendar days after delivery if the Goods and/or





Services do not comply with the requirements of the Contract.

If the Customer does not notify the Supplier of rejection

within the fourteen (14) day period, the Customer will be

taken to have accepted the Goods and/or Services, though the

Customer may accept the Goods and/or Services sooner. Title

to Goods transfers to the Customer only on acceptance.

If the Customer rejects the Goods and/or Services, the

Customer must issue a Notice clearly stating the reason for

rejection and the remedy the Customer requires. No payment

will be due for rejected Goods and/or Services until their

acceptance.

C.C.11 Termination for Cause:

The Customer may terminate the Contract in whole or in part

if:

(a) the Supplier does not deliver the Goods and/or Services as

specified in the Contract, or notifies the Customer that the

Supplier will be unable to deliver the Goods and/or

Services as specified in the Contract;

(b) the Customer rejects the Goods and/or Services in

accordance with clause C.C.10 [Delivery and Acceptance]

and the Goods and/or Services are not remedied as

required by the Notice of rejection;

(c) the Supplier breaches the Contract and the breach is not

capable of remedy;

(d) the Supplier does not remediate a breach of the Contract

which is capable of remediation within the period

specified by the Customer in a Notice of default issued to

the Supplier; or

(e) the Supplier:

(i) is unable to pay all its debts when they become due;

(ii) if incorporated – has a liquidator, receiver,

administrator or other controller appointed or an

equivalent appointment is made under legislation other

than the Corporations Act 2001; or

(iii) if an individual – becomes bankrupt or enters into an

arrangement under Part IX or Part X of the

Bankruptcy Act 1966.

Termination of a Contract under this clause, does not change

the Customer’s obligation to pay any Correctly Rendered

Invoice.

[C.C.12 Not Used]

C.C.13 Dispute Resolution:

For any dispute arising under the Contract both the Supplier

and the Customer agree to comply with (a) to (d) of this clause

sequentially:

(a) both Contract Managers will try to settle the dispute by

direct negotiation;

(b) if unresolved, the Contract Manager claiming that there is

a dispute will give the other Contract Manager a Notice

setting out details of the dispute and proposing a solution;

(c) if the proposed solution is not accepted by the other

Contract Manager within five (5) business days, each

Contract Manager will nominate a more senior

representative, who has not had prior direct involvement

in the dispute. These representatives will try to settle the

dispute by direct negotiation;

(d) failing settlement within a further ten (10) business days,

the Customer will, without delay, refer the dispute to a

mediator selected by the Customer or, at the Customer’s

discretion, to the chairperson of an accredited mediation

organisation to appoint a mediator, for mediation to

commence within fifteen (15) business days of the request.

Representatives for the Supplier and the Customer must attend

the mediation. The nominated representatives must have the

authority to bind the relevant party and act in good faith to

genuinely attempt to resolve the dispute.

The Customer and the Supplier will each bear their own costs

for dispute resolution. The Customer will bear the costs of a

mediator.

If the dispute is not resolved within thirty (30) business days

after mediation commences, either the Supplier and the

Customer may commence legal proceedings.

Despite the existence of a dispute, the Supplier will (unless

requested in writing by the Customer not to do so) continue

their performance under the Contract.

This procedure for dispute resolution does not apply to action

relating to Termination for Cause under clause C.C.11 or to

legal proceedings for urgent interlocutory relief.

C.C.14 Specified Personnel:

The Supplier must ensure that the Specified Personnel set out

in Item C.A.5 [Specified Personnel] (if any) perform that part

of the Services specified in that item. The Supplier must

ensure that Specified Personnel (if any) are not replaced

without the prior written consent of the Customer.

At the Customer’s request, the Supplier, at no additional cost

to the Customer, must promptly replace any Specified

Personnel that the Customer reasonably considers should be

replaced with personnel acceptable to the Customer.

C.C.15 Licences Approvals and Warranties:

The Supplier must obtain and maintain all licenses or other

approvals required for the lawful provision of the Goods

and/or Services and arrange any necessary customs entry for

any Goods.

To the extent permitted by laws and for the benefit of the

Customer, the Supplier consents, and must use its best

endeavours to ensure that each author of Material consents in

writing, to the use by the Customer of the Material, even if the

use may otherwise be an infringement of their Moral Rights.

The Supplier must provide the Customer with all relevant third

Party warranties in respect of Goods. If the Supplier is a

manufacturer, the Supplier must provide the Customer with all

standard manufacturer’s warranties in respect of the Goods it

has manufactured and supplied.

C.C.16 Invoice:

If the Supplier is required to submit an invoice to trigger

payment, the invoice must be a Correctly Rendered Invoice.

The Supplier must promptly provide to the Customer such

supporting documentation and other evidence reasonably

required by the Customer to substantiate performance of the

Contract by the Supplier.

Payment of any invoice is not evidence that the obligations

under the Contract are accepted, evidence of the value of the

obligations performed by the Supplier, or an admission of

liability, but is payment on account only.

If the Supplier owes any amount to the Customer in

connection with the Contract, the Customer may offset that

amount, or part of it, against its obligation to pay any

Correctly Rendered Invoice.

C.C.17 Payment:

The Customer must pay the amount of a Correctly Rendered

Invoice to the Supplier within thirty (30) calendar days after

receiving it, or if this day is not a business day, on the next

business day.





C.C.18 Supplier not to make representations:

The Supplier must not represent itself, and must ensure that its

officers, employees, agents or subcontractors do not represent

themselves, as being an officer, employee, partner or agent of

the Customer, or as otherwise able to bind or represent the

Customer.

C.C.19 Compliance with Laws:

The Supplier must comply with, and ensure its officers,

employees, agents and subcontractors comply with the laws

from time to time in force in any jurisdiction in which any part

of the Contract is performed.

C.C.20 Compliance with Commonwealth Laws and

Policies:

The Supplier must comply with, and ensure its officers,

employees, agents and subcontractors comply with all

Commonwealth laws and policies relevant to the Goods and/or

Services.

This general obligation is not limited by the following clauses

A to G.

A. Access to Supplier’s Premises: The Supplier agrees to

give the Customer, or its nominee, all assistance reasonably

requested for any purpose associated with the Contract or any

review of the Supplier’s performance under the Contract. This

will include, but is not limited to, access to premises, material,

records and personnel associated with the Goods and/or

Services and the Contract.

B. Confidential Information: The Supplier agrees not to

disclose to any person, other than the Customer, any

confidential information relating to the Contract or the Goods

and/or Services, without prior written approval from the

Customer. This obligation will not be breached where the

Supplier is required by law or a stock exchange to disclose the

relevant information. If, at any time, the Customer requires,

the Supplier is to arrange for its employees, agents or

subcontractors to give a written undertaking relating to

nondisclosure of the Customer’s confidential information in a

form acceptable to the Customer.

The Customer will keep any information in connection with

the Contract confidential to the extent it has agreed in writing

to keep specified information confidential. The Customer will

not be in breach of any confidentiality agreement if the

Customer is required to disclose the information.

C. Privacy Act 1988 (Cth) Requirements: In providing the

Goods and/or Services, the Supplier agrees to comply, and to

ensure that its officers, employees, agents and subcontractors

comply with the Privacy Act 1988 (Cth) and not to do

anything, which if done by the Customer would breach an

Australian Privacy Principle as defined in that Act.

The Supplier will immediately notify the Customer if the

Supplier becomes aware of a breach or possible breach of any

of its obligations under this clause C.C.20(C).

D. Criminal Code: The Supplier acknowledges that the

giving of false or misleading information to the

Commonwealth is a serious offence under section 137.1 of the

schedule to the Criminal Code Act 1995 (Cth). The Supplier

must ensure that any subcontractor engaged in connection

with the Contract acknowledges the information contained in

this clause.

E. Freedom of Information Act 1982 (Cth) (“FOI Act”)

Requirements: Where the Customer has received an FOI

request for access to a document created by, or in the

possession of the Supplier or its subcontractors that relates to

the Contract and is required to be provided under the FOI Act,

the Supplier must promptly provide the document to the

Customer, on request, at no cost.

F. Record Keeping: The Supplier must maintain proper

business and accounting records relating to the supply of the

Goods and/or Services and allow the Customer or its

authorised representative to inspect those records when

requested. The Supplier will provide any assistance and

information required should the Australian National Audit

Office wish to conduct an audit of the Supplier’s accounts and

records.

The Supplier must not transfer, or permit the transfer of,

custody or the ownership of any Commonwealth record (as

defined in the Archives Act 1983 (Cth)) without the prior

written consent of the Customer. All Commonwealth records

must be returned to the Customer at the conclusion of the

Contract.

G. Security and Safety: When accessing any Commonwealth

place, area or facility, the Supplier must comply with any

security and safety requirements notified to the Supplier by the

Customer or of which the Supplier is, or should reasonably be,

aware. The Supplier must ensure that its officers, employees,

agents and subcontractors are aware of, and comply with, such

security and safety requirements.

The Supplier must ensure that any material and property

(including security-related devices and clearances) provided

by the Customer for the purposes of the Contract is protected

at all times from unauthorised access, use by a third Party,

misuse, damage and destruction and is returned as directed by

the Customer.

H. Indigenous Procurement Policy: In providing the Goods

and/or Services, the Supplier agrees to use its reasonable

efforts to comply with the Commonwealth’s Indigenous

Procurement Policy available at:

http://www.dpmc.gov.au/resource-

centre/government/commonwealth-indigenous-procurement-

policy

http://www.dpmc.gov.au/resource-centre/government/commonwealth-indigenous-procurement-policy







Commonwealth Contracting Suite (CCS) Glossary

In the Commonwealth Contracting Suite:

A reference to:

a) a clause in the form A.A.[x] – is a reference to a clause of the Approach to Market;

b) a clause in the form A.B.[x] – is a reference to a clause of the Commonwealth ATM Terms;

c) an item in the form C.A.[x] – is a reference to an item in the Statement of Work;

d) a clause in the form C.B.[x] – is a reference to a clause in the Additional Contract Terms;

e) a clause in the form C.C.[x] – is a reference to a clause of the Commonwealth Contract Terms;

f) a clause in the form D.A.[x] – is a reference to a clause of the CCS Standing Offer Deed;

g) a clause in the form D.B.[x] – is a reference to a clause of the CCS Additional Deed Terms; and

h) a clause in the form D.C.[x] – is a reference to a clause of the CCS Standing Offer Deed Terms.

“Additional Contract Terms” means the terms and conditions set out in the section of the Contract with the heading ‘Additional

Contract Terms’.

“Additional Deed Terms” means the terms and conditions set out in the section of the Deed with the heading ‘Additional Deed

Terms’.

“Approach to Market or ATM” means the notice inviting potential suppliers to participate in the procurement.

“Closing Time” means the closing time specified in clause A.A.1 [Key Events and Dates].

“Contract” means either the documentation specified in clause C.C.3 [Precedence of Documents] or, where a contract is created by

the issue of an Order under a Deed, the documentation specified on the Contract Signing Page of the Order.

“Contract Extension Option” means an option of a Customer to extend a Contract for one or more additional time periods.

“Contract Manager” means the contract manager for the Customer and/or Supplier (as relevant) specified in item C.A.4 [Contract

Managers and Addresses for Notices].

“Contract Price” means the total contract price specified in item C.A.3 [Contract Price], including any GST component payable, but

does not include any simple interest payable on late payments.

“Correctly Rendered Invoice” means an invoice that:

a) is correctly addressed and calculated in accordance with the Contract;

b) relates only to Goods and/or Services that have been accepted by the Customer in accordance with the Contract;

c) includes any purchase order number, and the name and phone number of the Customer’s Contract Manager;

d) is for an amount which, together with all previously Correctly Rendered Invoices, does not exceed the Contract Price; and

e) is a valid tax invoice in accordance with the GST Act.

“Customer” means a party specified in a Contract or a Deed as a Customer.

“Deed” means the documentation specified in clause D.C.3 [Precedence of Documents].

“Deed Extension Option” means an option of a Panel Owner to extend a Contract for one or more additional time periods.

“Deed Manager” means the deed manager for the Customer and/or Supplier (as relevant) specified in item D.A.4 [Deed Managers

and Addresses for Notices].

“Deed Statement of Work” means the section of the CCS Standing Offer Deed with the heading “Deed Statement of Work”.

“Delivery and Acceptance” means the process in which Goods and/or Services are delivered to a Customer and accepted by the

Customer as meeting the terms specified in the Contract.

“General Interest Charge Rate” means the general interest charge rate determined under section 8AAD of the Taxation

Administration Act 1953 on the day payment is due, expressed as a decimal rate per day.

“Goods and/or Services” means:

a) the Goods, Services, or Goods and Services and any Material specified in the Contract; and

b) all such incidental Goods and Services that are reasonably required to achieve the purposes of the Customer as specified in the

Contract.

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

“GST” means a Commonwealth goods and services tax imposed by the GST Act.

“Intellectual Property Rights” means all intellectual property rights which may subsist in Australia or elsewhere, whether or not they

are registered or capable of being registered.

“Material” means any material brought into existence as a part of, or for the purpose of producing the Goods and/or Services, and

includes but is not limited to documents, equipment, information or data stored by any means.

“Moral Rights” means right of attribution of authorship of work, right not to have authorship of work falsely attributed and right of

integrity of authorship as defined in the Copyright Act 1968 (Cth).





“Notice” means au official notice or communication under the Contract in writing, from one Contract Manager and delivered to the

other Contract Manager, at the postal address, or email address, or facsimile number set out in the Statement of Work or as notified

from time to time.

“Order” means any order issued under a Deed.

“Panel Owner” means the party specified in a Deed as the Panel Owner.

“Quote” means a price submitted by the Supplier for the provision of particular Goods and/or Services.

“Requirement” means the description of the Goods and Services described in:

a) for the purposes of the Commonwealth ATM Terms the section of the Approach to Market with the heading ‘Requirement’;

b) for the purposes of the CCS Standing Offer Terms the section of the CCS Standing Offer Deed with the heading ‘Requirement’; or

c) for the purposes of the Commonwealth Contract Terms the section of the Statement of Work with the heading ‘Requirement’.

“Specified Personnel” means the personnel specified in item C.A.5 or such other personnel who are accepted by the Customer in

accordance with clause C.C.14 [Specified Personnel].

“Statement of Requirement” means the section of the Approach to Market with the heading ‘Statement of Requirement’.

“Statement of Work” means the section of the Contract or the Order, as the case may be, with the heading ‘Statement of Work’.

“Supplier” means a party specified in a Contract or a Deed as a Supplier.





Contract Signing Page

The Parties agree that by signing this Commonwealth Contract – Goods and/or Services, they enter into a

Contract comprising:

a) Additional Contract Terms (if any);

b) Statement of Work;

c) Commonwealth Contract Terms;

d) Commonwealth Contracting Suite Glossary; and

e) Contract Annex 1 – Supplementary information (if any).

EXECUTED as an Agreement

Customer:

Signed for and on behalf of the Australian Digital Health Agency (the Customer) ABN 84 425 496 912 by its

duly authorised representative in the presence of:

Signature of witness Signature of representative

_______________________________ __________________________________

Name of witness (print) Name of representative (print)

________________________________ __________________________________

Position of representative (print)

__________________________________

On (print date)

__________________________________





Supplier:

[Note: Select and complete the appropriate execution block for the entity you are contracting with from the

list below and delete the remainder.]

[For a Supplier who is an individual or sole trader:]

Executed by [insert full legal name of the individual] ABN: [insert ABN] in the presence of:

Signature of witness Signature of Supplier

_______________________________________ __________________________________

Name of witness (print) Name of Supplier (print)

_______________________________________ __________________________________

On (print date)

________________________________________





[For a Supplier who is an individual trustee of a trust:]

Executed by [insert full legal name of the trustee] as trustee of [insert full name of trust] ABN: [insert ABN of

trust] in the presence of:

Signature of witness Signature of trustee

_______________________________________ __________________________________

Name of witness (print) Name of trustee (print)

_______________________________________ __________________________________

On (print date)

__________________________________





[For a Supplier that is a company:]

Executed by [insert full name of the company] ACN: [insert ACN] in accordance with section 127 of the Corporations Act 2001

Signature of director Signature of director/company secretary (Please delete as applicable)

_______________________________________ __________________________________

Name of director (print) Name of director/company secretary (print)

_______________________________________ __________________________________

On (print date)

__________________________________





[For a Supplier that is a corporate trustee of a trust:]

Executed by [insert full name of the company] ACN: [insert ACN] in accordance with section 127 of the

Corporations Act 2001 as trustee of [insert full name of trust] ABN: [insert ABN of trust]:

Signature of director Signature of director/company secretary (Please delete as applicable)

_______________________________________ __________________________________

Name of director (print) Name of director/company secretary (print)

_______________________________________ __________________________________

On (print date)

__________________________________





[For a Supplier that is a partnership:]

Executed for an on behalf of by [insert name of partnership] ABN: [insert] by a duly authorised representative

who warrants that they have the authority to sign this Contract on behalf of [insert name of partnership] in

the presence of:

Signature of witness Signature of authorised representative

_______________________________________ __________________________________

Name of witness (print) Name of authorised representative (print)

_______________________________________ __________________________________

On (print date)

__________________________________