purchasing agreement pabx services and equipment between the

Transcription

PURCHASING AGREEMENT
PABX SERVICES AND EQUIPMENT
BETWEEN
THE MINISTER FOR INFRASTRUCTURE ON BEHALF OF THE CROWN
IN RIGHT OF THE STATE OF SOUTH AUSTRALIA
(“the State”)
-AND-
NEC AUSTRALIA PTY LTD
ABN 86 001 217 527
(“the Supplier”)
PURCHASING AGREEMENT INCLUDES VARIATIONS TO #4 DATED 15/2/2016
Page 1
TABLE OF CONTENTS
PART 1 - PRELIMINARY ............................................................................................................... 6
1.
DOCUMENT STRUCTURE ................................................................................................. 6
2.
FORMAL CONSIDERATION AND BACKGROUND ........................................................... 6
PART 2 - CONTRACT DOCUMENTS ............................................................................................ 7
3.
UNDERSTANDING THE CONTRACT DOCUMENTS ........................................................ 7
4.
DEFINITIONS AND INTERPRETATION ............................................................................. 7
PART 3 - SCOPE OF THIS AGREEMENT ..................................................................................... 7
5.
SCOPE OF PRODUCTS AND SERVICES ......................................................................... 7
6.
ELIGIBLE ENTITIES ........................................................................................................... 7
7.
NON EXCLUSIVITY ............................................................................................................ 8
8.
NO MINIMUM PURCHASE ................................................................................................. 8
PART 4 - COMMENCEMENT, TERM, VARIATION AND TERMINATION ..................................... 8
9.
COMMENCEMENT ............................................................................................................. 8
10.
TERM .................................................................................................................................. 8
11.
TERMINATION ................................................................................................................... 9
12.
VARIATION OF AGREEMENT ......................................................................................... 11
PART 5 - ADMINISTRATION ....................................................................................................... 11
13.
PRINCIPAL CONTRACT ADMINISTRATORS ................................................................. 11
14.
MEETINGS ....................................................................................................................... 11
15.
COMMUNICATION ........................................................................................................... 12
16.
INFORMATION REPOSITORY ......................................................................................... 12
17.
REPORTS ......................................................................................................................... 12
18.
RECORD KEEPING .......................................................................................................... 12
19.
CONTRACT LEVY ............................................................................................................ 12
PART 6 - CUSTOMER AGREEMENTS ........................................................................................ 12
20.
STANDING OFFER TO ELIGIBLE ENTITIES................................................................... 12
21.
FORMATION OF CUSTOMER AGREEMENTS................................................................ 12
1466 - Purchasing Agreement NEC PABX Services and Equipment
Page 2
22.
CONDITIONS OF CUSTOMER AGREEMENT ................................................................. 13
23.
COMPLIANCE WITH CUSTOMER AGREEMENT ........................................................... 13
PART 7 - SERVICE OBLIGATIONS ............................................................................................. 13
24.
ELECTRONIC COMMERCE ............................................................................................. 13
25.
ICT THREATS AND MALICIOUS SOFTWARE ................................................................ 13
26.
POLICIES, STANDARDS, GUIDELINES AND OTHER REQUIREMENTS ...................... 14
27.
QUALITY ASSURANCE ................................................................................................... 14
28.
KEY PERFORMANCE INDICATORS ............................................................................... 14
29.
SERVICE MANAGEMENT ................................................................................................ 14
30.
SUPPLIER’S SPECIFIC OBLIGATIONS .......................................................................... 14
PART 8 - PRICE ........................................................................................................................... 14
31.
PRICE ............................................................................................................................... 14
PART 9 - SOFTWARE AND INTELLECTUAL PROPERTY ......................................................... 15
32.
INTELLECTUAL PROPERTY ........................................................................................... 15
33.
SOFTWARE ...................................................................................................................... 15
34.
VESTING .......................................................................................................................... 15
PART 10 - TRANSITION .............................................................................................................. 16
35.
TRANSITION IN ................................................................................................................ 16
36.
TRANSITION OUT ............................................................................................................ 16
PART 11 - INFORMATION AND SECURITY ............................................................................... 16
37.
CONFIDENTIAL CONTRACT CONDITIONS .................................................................... 16
38.
INFORMATION PRIVACY ................................................................................................ 16
39.
DATA ................................................................................................................................ 17
40.
SECURITY ........................................................................................................................ 18
PART 12 - OTHER MATTERS ..................................................................................................... 19
41.
DEFAULT AND RECTIFICATION..................................................................................... 19
42.
REMEDIES ....................................................................................................................... 19
43.
STATE AUDIT................................................................................................................... 20
43A.
FINANCIAL STATEMENTS .............................................................................................. 21
Page 3
44.
DISPUTES ........................................................................................................................ 21
45.
DISPUTE RESOLUTION INVOLVING OTHER SUPPLIERS ............................................ 22
46.
INDEMNITY AGAINST THIRD PARTY CLAIMS .............................................................. 22
47.
INDEMNITY PROCEDURES............................................................................................. 23
48.
SUB-CONTRACTING ....................................................................................................... 24
49.
PROBITY .......................................................................................................................... 24
50.
CHANGE OF CONTROL .................................................................................................. 25
51.
NO REPRESENTATIONS ................................................................................................. 25
52.
APPLICABLE LAW .......................................................................................................... 25
53.
LEGAL COMPLIANCE ..................................................................................................... 25
54.
JURISDICTION OF COURTS ........................................................................................... 26
55.
ASSIGNMENT .................................................................................................................. 26
56.
WAIVER ............................................................................................................................ 26
57.
READING DOWN AND SEVERANCE .............................................................................. 26
58.
NOTICES .......................................................................................................................... 26
59.
FORCE MAJEURE ........................................................................................................... 27
PART 13 - POLICY MATTERS..................................................................................................... 28
60.
ENVIRONMENT AND ENERGY ....................................................................................... 28
61.
EQUAL OPPORTUNITY ................................................................................................... 29
62.
MANAGEMENT AND COORDINATION OF A SIGNIFICANT ICT INCIDENT OR ICT
FAILURE ...................................................................................................................................... 29
SCHEDULES
SCHEDULE 1
DEFINITIONS AND INTERPRETATION
SCHEDULE 2
ELIGIBLE ENTITIES
SCHEDULE 3
CONDITIONS OF A CUSTOMER AGREEMENT
SCHEDULE 4
CUSTOMER AGREEMENT MEMORANDUM FORM
SCHEDULE 5
PRODUCTS AND SERVICES - SCOPE AND SPECIFICATIONS
SCHEDULE 6
INFORMATION REPOSITORY – NOT USED
SCHEDULE 7
REPORTING REQUIREMENTS
SCHEDULE 8
RECORD KEEPING REQUIREMENTS
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SCHEDULE 9
CONTRACT LEVY
SCHEDULE 10
DOCUMENTATION
SCHEDULE 11
ELECTRONIC COMMERCE
SCHEDULE 12
NOT USED 1
SCHEDULE 13
POLICIES, STANDARDS, GUIDELINES AND OTHER REQUIREMENTS 2
SCHEDULE 14
QUALITY ASSURANCE REQUIREMENTS
SCHEDULE 15
KEY PERFORMANCE INDICATORS
SCHEDULE 16
SERVICE DEBITS
SCHEDULE 17
PRICES AND PRICE REVIEW
SCHEDULE 18
INVOICES
SCHEDULE 19
SECURITY REQUIREMENTS 3
SCHEDULE 20
INFORMATION PRIVACY 4
SCHEDULE 21
TRANSITION IN PLAN
SCHEDULE 22
TRANSITION OUT PLAN
SCHEDULE 23
ENVIRONMENT AND ENERGY
SCHEDULE 24
COMMUNICATION
SCHEDULE 25
SUPPLIER SPECIFIC OBLIGATIONS
CENTRES – NOT USED
SCHEDULE 26
CONFIDENTIAL PURCHASING AGREEMENT CONDITIONS
SCHEDULE 27
PERSONNEL
SCHEDULE 28
SOFTWARE
SCHEDULE 29
INTELLECTUAL PROPERTY RIGHTS
SCHEDULE 30
MANAGEMENT AND COORDINATION
INCIDENT OR ICT FAILURE 5
SCHEDULE 31
TERMINATION FOR CONVENIENCE COSTS
1
2
3
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5
Amended by Variation No.4# DATED 15/2/2016 (Knet: 9924758)
AND
OF
NOMINATED
A
REPAIR
SIGNIFICANT
ICT
Page 5
67
SCHEDULE 32
PRE-APPROVED SUB-CONTRACTORS
EXHIBIT 1
EXHIBIT 1 STATENET SERVICE MANAGEMENT PROCESSES 8
EXHIBIT 3
TRANSITION MANAGEMENT METHODOLOGY
EXHIBIT 4
STATENET CONDITIONS OF CONNECTION 9
6
7
8
9
Amended by Variation #1 dated 19/11/12 (Knet: 7091787)
THIS AGREEMENT is made the
day of
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20
BETWEEN:
The Minister for Infrastructure on behalf of the Crown in right of the State of South Australia (“the
State”)
AND
NEC Australia Pty Ltd (ABN 86 001 217 527) whose registered office is 649 Springvale Road,
Mulgrave, Victoria 3170 (“the Supplier”)
PART 1 - PRELIMINARY
1.
DOCUMENT STRUCTURE
This Agreement is divided into thirteen (13) parts, namely:
2.
1.1
Part 1 - Preliminary;
1.2
Part 2 - Contract Documents;
1.3
Part 3 - Scope of this Agreement;
1.4
Part 4 - Commencement, Term, Variation and Termination;
1.5
Part 5 - Administration;
1.6
Part 6 - Customer Agreements;
1.7
Part 7 - Service Obligations;
1.8
Part 8 - Price;
1.9
Part 9 - Intellectual Property;
1.10
Part 10 - Transition;
1.11
Part 11 - Information and Security;
1.12
Part 12 - Other Matters; and
1.13
Part 13 - Policy Matters
FORMAL CONSIDERATION AND BACKGROUND
2.1
In consideration of the Supplier undertaking obligations under this Agreement, the
State must pay the consideration of ten ($10) dollars on demand by the Supplier.
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2.2
The Supplier and the State acknowledge that a Purchasing Agreement made
between the Parties dated 21st November 2005, entitled “Purchasing Agreement
Services” expires on 19 February 2011 and all Customer Agreements formed under
that Purchasing Agreement similarly expire.
2.3
The Supplier and the State agree that a Purchasing Agreement made between the
Parties dated 31 August 2006 entitled “Purchasing Agreement Equipment”, together
with all Customer Agreements formed under that Purchasing Agreement, terminate
on commencement of this Agreement.
PART 2 - CONTRACT DOCUMENTS
3.
4.
UNDERSTANDING THE CONTRACT DOCUMENTS
3.1
The State and the Supplier have entered into, an agreement (“Head Agreement”)
dated 21 November 2005, which contemplates that the State and the Supplier may
enter into one or more agreements for the supply of information and communication
technology (“ICT”) products or services (each a “Purchasing Agreement”).
3.2
This Agreement is a Purchasing Agreement as contemplated under the Head
Agreement.
3.3
This Agreement provides a framework for Eligible Entities to acquire the Products
and Services in their own right by entering into Customer Agreements.
Definitions and rules of interpretation are contained in Schedule 1.
PART 3 - SCOPE OF THIS AGREEMENT
5.
6.
SCOPE OF PRODUCTS AND SERVICES
5.1
The scope of the Products and Services able to be supplied by the Supplier to the
Eligible Entities under this Agreement are as set out in Schedule 5.
5.2
The Supplier must, for the duration of the Term, continue to supply the Products
(including upgrades or attachments) and Services.
ELIGIBLE ENTITIES
Entities eligible to enter into Customer Agreements with the Supplier for the supply of
Products and Services under this Agreement are:
6.1
Administrative Units, agencies and instrumentalities of the Crown in right of the
State of South Australia, excepting any listed in Table A of Schedule 2; and
6.2
those other entities listed, or those classes of entities described in Table B of
Schedule 2,
(“Eligible Entities”).
7.
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NON EXCLUSIVITY
The Supplier acknowledges that the State and Eligible Entities are at liberty to purchase the
Products and Services (or products or services of a similar nature) from other suppliers at
their discretion throughout the Term.
8.
NO MINIMUM PURCHASE
The Supplier acknowledges that the State is not under any obligation to purchase a
minimum quantity of any Product or Service from the Supplier during the Term.
PART 4 - COMMENCEMENT, TERM, VARIATION AND TERMINATION
9.
COMMENCEMENT
This Agreement commences on the 20th of February 2011 (the “Commencement Date”).
10.
TERM
10.1
“Term” means the period during which this Agreement remains in operation being a
period commencing on the Commencement Date and ending at the expiration of:
10.1.1 the Initial Term; or
10.1.2 the Extension Term (in the event that the Initial Term is extended pursuant to
clause 10.3
unless terminated earlier in accordance with the provisions of this Agreement.
10.2
The Initial Term of one (1) year and nine (9) months commences on the
Commencement Date (“Initial Term”).
10.3
The State may at its option extend this Agreement for up to five (5) further periods
(each an “Extension Period”) comprising:
10.3.1 one (1) period of three (3) years commencing from the expiry of
Term;
the Initial
10.3.2 one (1) period of one (1) month, commencing from the expiry of the first
Extension period;
10.3.3 one (1) period of two (2) months; commencing from the expiry of the second
Extension period;
10.3.4 one (1) period of nine (9) months commencing from the expiry of the third
Extension period; and
10.3.5 one (1) period of one (1) year commencing from the expiry of the fourth
Extension Period;
by in each instance, giving notice in writing to the Supplier not later than three (3)
calendar months before the expiry of the Initial Term or the
Extension Period.
10.4
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The “Extension Term” shall be the Initial Term together with the aggregate of all
Extension Periods.
Effect of extension on Customer Agreements
10.5
The Parties acknowledge that any extension of this Agreement under clause 10.3
will have the effect of extending each then existing Customer Agreement by the
same period of time as the period of this Agreement’s extension, unless:
10.5.1 a Customer advises the Supplier before the commencement of a proposed
Extension Period that its Customer Agreement is not to be extended; or
10.5.2 as otherwise agreed or terminated in accordance with the provisions of the
Customer Agreement.10 11 12 13.
11.
TERMINATION
Termination by the State
11.1
The State may terminate this Agreement, or any one or more Customer Agreements
with State Agencies entered into under this Agreement, by notice effective
immediately:
11.1.1 if the Supplier is in breach of the Head Agreement and has failed to rectify
the breach within the time allowed in a Default Notice issued by the State
pursuant to the Head Agreement;
11.1.2 if the Supplier is in breach of obligations under this Agreement and has failed
to rectify the breach within the time allowed in a Default Notice issued by the
State under this Agreement;
11.1.3 if the Supplier is in breach of a Customer Agreement and has failed to rectify
the breach within the time allowed in a Default Notice issued by the
Customer pursuant to the Customer Agreement;
11.1.4 if a Force Majeure substantially prevents, hinders or delays the supply of any
Products or Services by the Supplier for more than thirty (30) consecutive
days, then the State may terminate this Agreement (or withdraw the affected
Products or Services from the scope of this Agreement) without liability to the
Supplier as of a date specified by the State in a written notice of termination
to the Supplier;
11.1.5 if an Insolvency Event occurs;
11.1.6 if a Key Performance Indicator Failure occurs; or
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12
13
Amended by Variation #2dated 5/11/15 (Knet: 9958055)
Amended by Variation# 3 dated 9/12/15 (Knet: 10026806)
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11.1.7 if there is a Change of Control of the Supplier.
Termination for Convenience
11.2
The State may, by written notice to the Supplier, terminate this Agreement for
convenience at any time during the Term.
11.3
The State will be liable to pay the Supplier Termination for Convenience Costs if the
State terminates this Agreement pursuant to clause 11.2.
11.4
The State must pay any Termination for Convenience Costs for which the State is
liable under this clause 11 within thirty (30) days of the amount being agreed or
determined in accordance with Schedule 31.
Effect of Termination or Expiration
11.5
Upon termination or expiration of this Agreement each Party must return to the other
all Confidential Information provided to it by the other Party.
11.6
Termination or expiration of this Agreement has the effect of terminating all
Customer Agreements but does not affect the accrued rights of the Parties (and
rights of a Customer under a Customer Agreement) except to the extent that the
Parties (and the Customer in the case of a Customer Agreement) otherwise agree in
writing.
Survival of obligations
11.7
Notwithstanding any termination or expiration of this Agreement, the following
provisions of this Agreement will survive in their entirety and continue to apply:
11.7.1 this clause 11.7 – Survival of Obligations;
11.7.2 Clause 11.5 which deals with the return of the Confidential Information;
11.7.3 Clause 11.6 – Effects of Termination on Customer Agreements;
11.7.4 Clause 32 - Intellectual Property;
11.7.5 Clause 34 - Vesting;
11.7.6 Clause 36 - Transition Out;
11.7.7 all of the provisions in Part 11 - Information and Security;
11.7.8 Clause 43 - State Audit;
11.7.9 Clause 46 - Indemnity Against Third Party Claims
11.7.10
Clause 47 - Indemnity Procedures;
11.7.11
Clause 48 - Sub-contracting;
11.7.12
Clause 52 - Applicable Law;
11.7.13
Clause 54 - Jurisdiction of Courts
11.7.14
Clause 56 - Waiver
12.
Page 11
11.7.15
Clause 57 - Reading down and severance;
11.7.16
Schedule 1 – Definitions and Interpretation; and
11.7.17
Any other provision that should by necessary implication survive.
VARIATION OF AGREEMENT
12.1
A Party may at any time give written notice to the other proposing a variation to this
Agreement (“Contract Variation Proposal”).
12.2
A Party who receives a Contract Variation Proposal must respond within ten (10)
Business Days as to whether it is prepared to accept the Contract Variation
Proposal or not.
12.3
If a Party who receives a Contract Variation Proposal does not agree to the
proposed variation, then the Parties must negotiate in good faith.
12.4
If the Party who receives a Contract Variation Proposal accepts a variation, by
written notice, the terms and conditions of this Agreement will be varied as agreed.
PART 5 - ADMINISTRATION
13.
14.
PRINCIPAL CONTRACT ADMINISTRATORS
13.1
This Agreement is to be administered by the Principal Contract Administrators
appointed under the Head Agreement, and their delegates.
13.2
A Party’s Principal Contract Administrator is responsible for overseeing the
performance of this Agreement on behalf of the party.
13.3
A Party’s Principal Contract Administrator can exercise all the powers and functions
of the Party that he or she represents, and has authority to bind it in respect of this
Agreement.
13.4
A Principal Contract Administrator may delegate any authority, and any authority so
delegated may be sub-delegated, except to the extent that the terms of the
delegation limit or prohibit sub-delegation.
13.5
A Principal Contract Administrator who delegates authority under the preceding subclause must, as soon as practicable, give to the other Party’s Principal Contract
Administrator written notification of the person to whom the delegation has been
made (“Delegate”) and the nature and scope of the Delegate’s authority.
MEETINGS
The Supplier must:
14.1
attend all meetings requested by the State. The State must, as far as practicable,
give reasonable notice of all such meetings to the Supplier; and
14.2
comply with the State’s meetings requirements as set out in Schedule 24.
15.
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COMMUNICATION
The Supplier must comply with the State’s communication requirements as set out in
Schedule 24.
16.
INFORMATION REPOSITORY
The Supplier must provide the State with information as set out in Schedule 6.
17.
REPORTS
The Supplier must comply with the State’s reporting requirements as set out in Schedule 7.
18.
19.
RECORD KEEPING
18.1
The Supplier must comply with the State’s record keeping requirements as set out in
Schedule 8.
18.2
The Supplier agrees that in performing its obligations under this Agreement it will act
in a manner that ensures that Customers are able to comply with the Contracting
and Official Records Standard.
CONTRACT LEVY
If requested by the State the Supplier must:
19.1
publish prices to Eligible Entities which include such contract levies as are specified
in Schedule 9; and
19.2
comply with the Supplier’s obligations as set out in Schedule 9.
PART 6 - CUSTOMER AGREEMENTS
20.
STANDING OFFER TO ELIGIBLE ENTITIES
The Supplier acknowledges that this Agreement:
21.
20.1
is a standing offer for the duration of the Term for the Supplier to enter into
Customer Agreements with Eligible Entities to supply the Products and Services on
the terms set out in this Agreement; and
20.2
is an offer to negotiate in good faith to enter into Customer Agreements with Eligible
Entities to supply Products and Services within the scope permitted under this
Agreement or on other terms as contemplated by clause 21.
FORMATION OF CUSTOMER AGREEMENTS
21.1
In order to purchase Products and Services under this Agreement an Eligible Entity
must enter into a Customer Agreement in accordance with the process contained in
this clause.
22.
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21.2
In order to enter into a Customer Agreement, an Eligible Entity must deliver to the
Supplier a memorandum, in the form set out in Schedule 4 (“Customer Agreement
Memorandum”) and addressing the subject matter set out in Schedule 4.
21.3
A Customer Agreement arises when the Parties have signed a Customer
Agreement Memorandum.
21.4
The Supplier must notify the State of each Customer Agreement it enters into and
must provide a copy of the Customer Agreement Memorandum to the State.
21.5
A Supplier is in breach of this Agreement if it enters into a Customer Agreement with
a State Agency on terms other than as provided in the Head Agreement and this
Purchasing Agreement without having first obtained the written approval of the
State’s Principal Contract Administrator.
21.6
Neither Party is bound by any terms of a Customer Agreement that are inconsistent
with the Head Agreement and this Purchasing Agreement, unless the prior written
approval of the State’s Principal Contract Administrator, in respect of the
inconsistent terms, was obtained.
CONDITIONS OF CUSTOMER AGREEMENT
A Customer Agreement is subject to the conditions set out in Schedule 3.
23.
COMPLIANCE WITH CUSTOMER AGREEMENT
The Supplier must comply with its obligations under a Customer Agreement.
PART 7 - SERVICE OBLIGATIONS
24.
ELECTRONIC COMMERCE
The Supplier must provide the electronic commerce facilities as set out in Schedule 11.
25.
ICT THREATS AND MALICIOUS SOFTWARE
25.1
The Supplier must not:
25.1.1 introduce or permit the introduction into the State’s ICT infrastructure of any
software, including but not limited to, malicious software, unless its
introduction has been authorised in writing by the State or a Customer; or
25.1.2 undertake, facilitate or permit any “denial of service attack” or other
unauthorised communication with the State’s ICT infrastructure that has the
effect or purpose of disrupting, damaging or degrading the performance of
that infrastructure,
(“ICT Threat”).
25.2
For the purposes of this clause:
25.2.1 “State’s ICT infrastructure” means the computing and communications
infrastructure owned or used by the State or a State Agency Customer; and
Page 14
25.2.2 “Malicious Software” means software designed or intended to cause harm
either by damaging or disrupting the performance of ICT infrastructure or by
transmission of information without the authority of the person to whom that
information is personal or confidential.
25.3
26.
27.
The Supplier must indemnify the State in respect of all loss, damage, claims and
expenses arising from a breach by the Supplier of its obligations under this clause.
POLICIES, STANDARDS, GUIDELINES AND OTHER REQUIREMENTS
26.1
The Supplier must ensure the Products and Services comply with the Policies,
Standards, guidelines and other requirements set out in Schedule 13 to this
Agreement.
26.2
In the course of using or having access to or connecting its infrastructure with the
State’s infrastructure, the Supplier must comply with any requirements set out in
StateNet Conditions of Connection a copy of which is attached as Exhibit 4.
QUALITY ASSURANCE
The Supplier must comply with the quality assurance requirements as set out in Schedule
14.
28.
KEY PERFORMANCE INDICATORS
Key Performance Indicators are measures of selected Service Levels chosen to reflect
aspects of the Agreement of particular importance to the State and because they are
indicators of the overall performance of the Supplier. They are set out in Schedule 15.
29.
SERVICE MANAGEMENT
The Supplier must comply with a Customer’s service management processes (if any) as set
out in a Customer Agreement. Customers and the Supplier may agree to use the StateNet
Service Management Processes 14.
30.
SUPPLIER’S SPECIFIC OBLIGATIONS
The Supplier must comply with the Supplier’s specific obligations as set out in Schedule 25.
PART 8 - PRICE
31.
PRICE
31.1
The Prices set out in or determined in accordance with Schedule 17 apply to the
provision of the Products and Services under Customer Agreements.
Taxes
14
31.2
Page 15
The Prices exclude GST, but include all other taxes, duties or government charges
imposed or levied in Australia or overseas in connection with this Agreement.
Costs included in Prices
31.3
The Prices include all costs of compliance with the Supplier’s obligations under this
Agreement.
Price review
31.4
The Prices are subject to review in accordance with Schedule 17 if a process of
review is contained in Schedule 17.
PART 9 - SOFTWARE AND INTELLECTUAL PROPERTY
32.
INTELLECTUAL PROPERTY
Mutual Obligation
32.1
The Parties agree to perform their respective responsibilities under this Agreement
in a manner that does not constitute an infringement of any Intellectual Property
Rights or other proprietary rights of each other, or of any third party.
Indemnity
32.2
The Supplier must keep the State indemnified against all costs, expenses and
liabilities whatsoever arising out of or in connection with any claim that the
performance of obligations under this Agreement by the Supplier infringes the
Intellectual Property Rights of any person.
Other rights and obligations
32.3
33.
Other rights and obligations of the Parties with regard to Intellectual Property Rights
are as set out in Schedule 29.
SOFTWARE
The rights and obligations of the Parties with regard to software are as set out in Schedule
28.
34.
VESTING
34.1
In respect of any work (as defined in the Copyright Act 1968) produced by the
Supplier in the course of and for the purposes of this Agreement (including without
limitation reports, records of Products and Services supplied to the State, charges
and invoices, procedure manuals, configuration details, and performance data)
subject only to exceptions set out in Schedule 29:
34.1.1 Intellectual Property Rights in the work and any embodiment of the work
automatically vests in the State; and
34.1.2 property in any separate physical embodiment of the work automatically
vests in the State.
34.2
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This Agreement does not vest in the State:
34.2.1 Intellectual Property Rights in the Supplier’s methodologies or other
proprietary information; or
34.2.2 copyright in existing publications or other work produced by or on behalf of
the Supplier prior to or otherwise than in the course of providing the Products
or Services.
34.3
To the extent that such methodologies, information or work is incorporated in work
produced by the Supplier in the course of and for the purposes of this Agreement,
the Supplier confers on the State a perpetual, irrevocable, fee free licence to use the
methodologies, information or work to the extent required for the full enjoyment and
use of the work vested in the State.
PART 10 - TRANSITION
35.
TRANSITION IN
Each Party must undertake the obligations, responsibilities and tasks allocated to it in
Schedule 21.
36.
TRANSITION OUT
Schedule 22.
PART 11 - INFORMATION AND SECURITY
37.
38.
CONFIDENTIAL CONTRACT CONDITIONS
37.1
The Parties acknowledge their obligations of confidentiality under the Head
Agreement.
37.2
The Parties acknowledge that the conditions of this Agreement designated in
Schedule 26 are confidential (“Confidential Contract Conditions”).
37.3
The Parties assume with respect to the Confidential Contract Conditions those
obligations under the Head Agreement that apply to them respectively with regard to
Confidential Contract Conditions and to Confidential Information generally.
INFORMATION PRIVACY
38.1
In the course of performing this Agreement and any Customer Agreement, the
Supplier must comply with:
38.1.1 the requirements set out in Schedule 20 with respect to Personal Information;
and
38.1.2 all applicable laws relating to the protection of privacy.
38.2
39.
Page 17
The Supplier must not do anything on the State’s behalf, or use Personal
Information in any manner that would contribute to or constitute a contravention of
the Information Privacy Principles 15.
DATA
Acknowledgement
39.1
The Supplier acknowledges that:
39.1.1 in the course of performing this Agreement it may be in possession of data
provided to, collected by or recorded by the State, the Customers and third
parties (“State’s Data”); and
39.1.2 it is only the custodian of the State’s Data, and must deliver that data to the
State or relevant Customer on demand, regardless of any other legal right or
remedy that the Supplier may then have.
The State’s Data remains the property of its owner
39.2
Nothing in this Agreement has the effect of transferring ownership or any other right
over the State’s Data to the Supplier (including any data that is subject to legal or
other professional privilege).
39.3
If the Supplier receives a subpoena or any other demand from a court or other
adjudicative person or body or from any person having legal authority to demand
production of data or State’s Data, it must:
39.3.1 promptly advise the owner of receipt of the demand, and promptly provide
the owner with a copy of the demand (to the extent it has been reduced to
writing); and
39.3.2 seek, and to the extent it can lawfully do so, comply with the owner’s
instructions as to the response to the demand (including, without, limiting,
delaying compliance for as long as possible).
39.4
Nothing in this clause requires the Supplier to commit an unlawful act, or expose
itself to proceedings for contempt or other lawful penalties.
No lien
39.5
The Supplier must ensure that the State and Customers have access to their data in
accordance with this Agreement at all times, whether or not any dispute exists
between the State or Customers and the Supplier.
39.6
Specifically, and without limiting any of the State’s rights, the Supplier
acknowledges:
39.6.1 it does not and will not have any lien over the State’s data or any property of
the State;
39.6.2 the State, Customers or any other person may seek immediate injunctive
relief to secure access to its data; and
15
Page 18
39.6.3 the Supplier must not obstruct hinder or oppose any such application for
relief.
40.
SECURITY
State security policies and practices
40.1
The Supplier acknowledges that the State has adopted policies and practices for
security of the information assets of the State and State Agencies. These are set
out in the Information Security Management Framework (“ISMF”). The current
version of the ISMF is available at http://www.sa.gov.au/policy/ismf.
40.2
The Supplier must confer, consult and cooperate in dealing with any requirement of
the State to implement or vary the State’s security policy and practices. To the
extent that this necessitates a change to the Products or Services provided, or the
Supplier’s obligations under this Agreement, then this will be subject to a Contract
Variation Proposal.
40.3
The Supplier must comply with any security policies, standards, guidelines and other
requirements set out in Schedule 19 16.
17
.
Personnel
40.5
At the Commencement Date the Supplier must supply to the Principal Contract
Administrator details as set out in Schedule 27 of all personnel who will be engaged
to provide Services, or to undertake any task for the purposes of this Agreement that
requires access to the Customers’ premises, and must provide, every six (6) months
from the Commencement Date, revisions to those details including any change in
the relevant personnel.
40.6
The State may require that personnel of the Supplier who have or are proposed to
have access to the Customer’s premises undergo:
40.6.1 security clearance at any level (up to Negative Vetting Level 2)18 under the
State's auspices;
40.6.2 the conduct of a police check; or
40.6.3 any other enquiry; and
the Supplier, if required by the State, must procure the consent of the personnel of the
Supplier to the conduct of the security clearance, police check or any other enquiry.
40.7
16
17
18
If the relevant personnel do not undergo or do not meet the clearance requirements,
the Supplier must not, except to the extent explicitly authorised by the State, permit
the personnel (“Uncleared Personnel”) to have access to the State’s information
assets.
40.8
Page 19
If necessary the Supplier must engage alternative personnel with requisite
knowledge and expertise who can meet the requirements of the security clearance
required pursuant to sub-clause 40.6, to perform the tasks that were to have been
performed by the Uncleared Personnel.
Premises
40.9
If the Supplier’s or a Sub-Contractor’s personnel enter the State’s or a Customer’s
premises in the performance of this Agreement, the Supplier must ensure that they
comply with the State’s or Customer’s reasonable requirements and policies
applicable to those premises, including without limitation, in relation to occupational
health, safety and welfare, and staff behaviour. The Customer must provide
reasonable notice of all such requirements and policies to the Supplier.
PART 12 - OTHER MATTERS
41.
DEFAULT AND RECTIFICATION
41.1
Either Party may give to the other a notice (“Default Notice”) requiring any default
under this Agreement to be rectified within a period of not less than twenty (20)
Business Days of the date of that notice (“Rectification Period”).
41.2
The Party receiving a Default Notice must:
41.2.1 rectify that default within the Rectification Period; or
41.2.2 immediately advise the other in writing that it does not acknowledge that a
default has occurred, and pursue the Dispute Resolution Procedure.
Demands for money
41.3
Either Party (“Claimant”) may give to the other a notice demanding the payment of
any money payable by the other Party to the Claimant and due but unpaid
(“Demand Notice”).
41.4
The Party receiving a Demand Notice must either:
41.4.1 if the money is acknowledged to be payable, pay it within ten (10) Business
Days; or
41.4.2 if liability to pay is disputed, immediately advise the other in writing that it
does not acknowledge that the money is payable, and pursue the Dispute
Resolution Procedure.
42.
REMEDIES
42.1
This clause does not exhaustively list remedies.
Making good default
42.2
If the Supplier fails to perform an obligation under this Agreement the State or
Customer may, without being obliged to, perform the obligation and claim the cost of
so doing from the Supplier.
Page 20
Set-off
42.3
Either Party may set off against money due and payable by that Party to the other
Party any moneys which are due from the other Party that have not been paid.
Remedies concurrent
42.4
43.
Each Party’s remedies under this Agreement are concurrent unless otherwise
specified.
STATE AUDIT
State Agencies
43.1
The Supplier must provide the State and any of its auditors and advisers full access
from time to time as required by the State to:
43.1.1 any premises (including any premises of the Supplier’s Sub-Contractors) at
which or from which the Supplier (or the Supplier’s Sub-Contractor as the
case may be) supplies the Products and/or Services; and
43.1.2 all relevant equipment, software, systems, data, accounts, documents,
personnel, reports and records (whether prepared by the Supplier or not)
relating to the Products and/or Services,
in order to enable the State to audit or review the Supplier’s compliance with this
Agreement as it relates to Customer Agreements with State Agencies.
43.2
Each Party must be responsible for its own costs associated with an audit or review
under the preceding sub clause save that if an audit or review shows an error
exceeding 5% of ten thousand dollars ($10,000) (whichever is the less) whether in
favour of the Supplier or a Customer or Customers:
43.2.1 in any one invoice; or
43.2.2 in relation to amounts charged to a Customer over a period of six months; or
43.2.3 in relation to amounts charged to a number of Customers over a period of six
months;
43.2.4 in relation to incorrect or incomplete reporting of amounts invoiced to
Customers over a period of twelve (12) months including in the collection of
the Contract Levy;
then the Supplier must pay the State’s costs associated with the audit or review,
(including auditor’s fees) in addition to refunding to the Customer or Customers the
amount of any errors in the Supplier’s favour together with interest at the Prescribed
Rate.
43A.
FINANCIAL STATEMENTS
43A.1
44.
Page 21
Within three (3) months of the end of each financial year, the Supplier must
provide the State with a copy of its audited financial statements, including
income statements and balance sheets. 19
DISPUTES
No legal proceedings without dispute resolution
44.1
Except in a case of genuine urgency where a Party seeks immediate interlocutory
relief or an interim remedy, neither Party may take legal proceedings in respect of
any dispute in relation to this Agreement without first attempting resolution in
accordance with this clause.
Notice
44.2
In the event of a dispute, or an unresolved good faith negotiation matter, a Party
may issue to the other Party a written notice of dispute (“Dispute Notice”),
describing the issue in dispute and requiring that the process in this clause be
followed.
44.3
Each Party must record in sufficient detail the nature and scope of the dispute, and
the issues raised by it, in writing and submit the record to the other Party.
Good faith negotiations
44.4
The Parties must meet and attempt to resolve the dispute in good faith as soon as
practicable.
44.5
If the Parties up to this point are not represented in the Dispute Resolution
Procedure by the Principal Contract Administrators, and if they are unable to resolve
the dispute within twenty (20) Business Days of the Dispute Notice, then (unless
they agree to an extension of that time), each of them must prepare a written record
of the attempts to settle the dispute and refer that record:
44.5.1 in the case of the State or a Customer, to the State’s Principal Contract
Administrator;
44.5.2 in the case of the Supplier, to the Supplier’s Principal Contract Administrator
within a further twenty (20) Business Days.
44.6
Each Party must sufficiently brief its Principal Contract Administrator so that the
Principal Contract Administrators are able to meet to endeavour to resolve the
dispute without detailed reference to another party within ten (10) Business Days or
a longer period if agreed between the Parties. In doing so, a Principal Contract
Administrator may be supported (at its election) by legal, financial, technical or other
experts.
Customer Disputes
19
44.7
Page 22
If the Supplier and a State Agency Customer are in dispute, the Parties must meet
and attempt to resolve the dispute as soon as practicable, and if they are unable to
resolve the dispute, must refer the matter to the State to seek resolution with the
Supplier.
Referred Customer Disputes
44.8
If a State Agency Customer or the Supplier refers a dispute under a State Agency
Customer Agreement to the Principal Contract Administrators pursuant to the
dispute resolution procedure under the Customer Agreement, the Principal Contract
Administrators must:
44.8.1 inform themselves of the issues in dispute;
44.8.2 meet within twenty (20) Business Days of the reference (or longer period if
agreed between the Principal Contract Administrators and the Customer);
44.8.3 consult in good faith to agree an appropriate outcome to the dispute; and
44.8.4 if possible make a joint recommendation to the Customer and the Supplier as
to an appropriate outcome to the dispute, or
44.8.5 in the case of the Supplier’s Principal Contract Administrator, make a
recommendation to the Supplier, and in the case of the State’s Principal
Contract Administrator make a recommendation to the Customer as to an
appropriate outcome.
45.
DISPUTE RESOLUTION INVOLVING OTHER SUPPLIERS
45.1
The Products or Services supplied by the Supplier will probably interact in some way
with products or services supplied by another supplier to the State. If a problem
occurs, a situation may arise where there is difficulty identifying whether the problem
exists in the Supplier’s Product or Service, or in the product or service of another
supplier.
45.2
If the State requires it, the Supplier must engage in a multi supplier discussion. A
“multi-supplier discussion” is a discussion between the Supplier and the other
supplier or suppliers, acting in good faith in an effort to:
45.2.1 determine the cause or causes of the problem, or
45.2.2 determine a course of action that will assist in identifying the cause or causes
of the problem, and
45.2.3 determine a course of action to resolve the problem.
45.3
46.
The State may at its discretion participate in or facilitate or observe the discussion,
or may choose to be absent.
INDEMNITY AGAINST THIRD PARTY CLAIMS
The Supplier must indemnify the State in respect of any claim or legal proceedings against
the State by a third party arising out of any wrongful act or omission (including negligence)
of the Supplier.
47.
Page 23
INDEMNITY PROCEDURES
Notice of Claim
47.1
Promptly after receipt by a Party (“Indemnified Party”) of notice of the
commencement (or threatened commencement) of any civil, criminal, administrative
or investigative action or proceeding involving a claim for which it will seek
indemnification from the other Party (“Indemnifying Party”), the Indemnified Party
must notify the Indemnifying Party in writing that it is obligated to provide such
indemnification of such claim. No failure to so notify the Indemnifying Party must
relieve the Indemnifying Party of its obligations under this Agreement except to the
extent that it can demonstrate to the reasonable satisfaction of the Indemnified Party
damage attributable to such failure.
Control by Indemnifying Party
47.2
The Indemnifying Party is entitled to have sole control over the defence and
settlement of such claim but:
47.2.1 the Indemnified Party must provide reasonable assistance to the
Indemnifying Party in respect of such claim and may participate in the
defence of such claim and employ (at its cost) its own counsel to assist in the
handling of that claim; and
47.2.2 the Indemnifying Party must obtain the prior written approval of the
Indemnified Party before entering into any settlement of such claim or
ceasing to defend against such claim if such settlement or cessation would
cause injunctive or other equitable relief to be imposed against the
Indemnified Party.
47.2.3 Any indemnity as to legal costs applies only until assumption of the defence
of the claim by the Indemnifying Party.
Reduced Contribution
47.3
Each Party's indemnity obligations under this Agreement must be reduced
proportionately by the extent to which the Indemnified Party's act or omission
contributed to the claim.
48.
49.
Page 24
SUB-CONTRACTING
48.1
The Supplier must not, without prior written consent of the State, sub-contract the
whole or any part of its obligations under this Agreement to a Sub-Contractor who is
either not included in the list of Sub-Contractors pre-approved by the State as set
out in Schedule 32 or as otherwise approved by the State. 20
48.2
The Supplier will not be relieved of any of its liabilities or obligations under this
Agreement by entering into a sub-contract and the Supplier will be liable for the acts,
defaults and neglects of any Sub-Contractor or any employee or agent of the SubContractor as fully as if they were the acts, defaults or neglects of the Supplier or the
employees or agents of the Supplier.
48.3
The Supplier must ensure the Sub-Contractor is suitably qualified and accredited to
carry out the obligations required pursuant to this Agreement.
PROBITY
49.1
The Supplier represents that it has not, for the purpose of winning the opportunity to
enter into this Agreement:
49.1.1 offered any Incentive to any person involved in the procurement process on
behalf of the State in relation to this Agreement (except as declared by the
Supplier in writing to the State before entering into this Agreement);
49.1.2 engaged in any practice such as collusion with other potential competitors,
payment of secret commission or any other deceptive or improper practice;
or
49.1.3 engaged in any practice that would give the Supplier an improper advantage
over competitors.
49.2
49.2.1 offer an Incentive to any person involved in the procurement process for this
Agreement or the Customer Agreement on behalf of the State or a Customer
for the Term, unless otherwise approved by the State;
49.2.2 engage in any practice such as collusion with other potential competitors,
secret commission or any other deceptive practice; or
49.2.3 engage in any practice that would give the Supplier an improper advantage
over competitors.
Incentive
49.3
20
For the purposes of this clause, “Incentive” means employment or consultancy, any
gift, reward, gratuity or other valuable consideration of any kind.
Page 25
No Conflict
49. 4 At the Effective Date, the Supplier warrants that it is not aware of any
conflict of interest (or potential conflict of interest) that would preclude
it from properly performing its obligations under any Contract
Document.
49. 5 The Supplier must disclose to the State in writing, all actual and
potential conflicts of interest that exist or arise (either for the Supplier
or Supplier Personnel) in the course of performing its obligations
under any Contract Document as soon as practical after it becomes
aware of that conflict 21.
50.
51.
CHANGE OF CONTROL
50.1
The Supplier must, to the extent permitted by law, notify the State (in writing) of any
proposed Change of Control of the Supplier.
50.2
The Supplier must, notify the State (in writing) as soon as legally permissible of any
actual Change of Control of the Supplier (regardless of whether notice of the
proposed change has been given under the preceding sub-clause).
50.3
Notwithstanding any other provision in this Agreement the State may, in its absolute
discretion terminate this Agreement if there is a Change of Control of the Supplier.
50.4
For the purposes of this clause, any change in beneficial or legal ownership of any
shares that are listed on a stock exchange shall be disregarded.
NO REPRESENTATIONS
To the maximum extent permitted by law, unless specifically stated in this Agreement, the
Supplier acknowledges and agrees that no representation, warranty, guarantee or other
statement, express or implied, was made or given to the Supplier by the State or any
Customer prior to entering into this Agreement (or any Customer Agreement as the case
may be) as to:
52.
51.1
the volume of Products which the Supplier would be required to provide; or
51.2
any other benefits which the Supplier might enjoy as a result of entering into this
Agreement.
APPLICABLE LAW
This Agreement is subject to the laws applicable in the State of South Australia.
53.
LEGAL COMPLIANCE
53.1
21
The Supplier must comply with the requirements of all Laws.
53.2
54.
55.
56.
57.
Page 26
The Supplier must hold and comply with all licences, authorities, approvals and
consents required for the lawful performance of its obligations under this Agreement.
JURISDICTION OF COURTS
54.1
The courts of South Australia have exclusive jurisdiction to determine any
proceeding in relation to this Agreement.
54.2
Any proceeding brought in a Federal Court must be instituted in the Adelaide
Registry of that Federal Court.
ASSIGNMENT
55.1
Neither Party may assign the whole or part of this Agreement without the other
Party’s prior written consent, which may be granted or withheld at its unfettered
discretion.
55.2
Notwithstanding the preceding sub-clause, it is acknowledged that the rights and
liabilities of Ministers of the Crown may be transferred by operation of law under the
Administrative Arrangements Act 1994 (SA).
WAIVER
56.1
The failure of either Party to enforce this Agreement will in no way be interpreted as
a waiver of its rights under this Agreement.
56.2
Waiver by a Party of its rights under this Agreement is effective only if it is given
expressly in writing signed by that Party, and only to the extent expressed in writing.
READING DOWN AND SEVERANCE
In the event that any provision or portion of any provision of this Agreement is held to be
unenforceable or invalid by a Court of competent jurisdiction the validity and enforceability
of the remaining provisions or portions of such provisions of this Agreement shall not be
adversely affected. The offending provision or part of a provision shall be read down to the
extent necessary to give it legal effect, or shall be severed if it cannot be read down, and
the remaining part and provisions of this Agreement shall remain in full force and effect.
58.
NOTICES
58.1
A notice or other communication is properly given or served if the Party delivers it by
hand, posts it or transmits it by electronic mail or facsimile, to the address of the
Principal Contract Administrator of the other Party, marked to their attention.
Change of address
58.2
Each Party must advise the other of any change in the address or the identity of the
Principal Contract Administrator.
Receipt of communications
58.3
A notice or other communication is taken to be received if:
Page 27
58.3.1 sent by post, at the time it would have been delivered in the ordinary course
of the post to the address to which it was sent;
58.3.2 sent by facsimile, at the time which the facsimile machine to which it has
been sent records that the communication has been transmitted satisfactorily
(or, if such time is outside normal business hours, at the time of resumption
of normal business hours);
58.3.3 sent by electronic mail or other electronic means, only in the event that the
other Party acknowledges receipt by any means;
58.3.4 delivered by hand, the Party who sent the notice holds a receipt for the notice
signed by a person employed at the physical address for service.
59.
FORCE MAJEURE
59.1
For the purpose of this clause Force Majeure means the prevention of a party (“nonperforming Party”) complying with its obligations under this Agreement by any:
59.1.1 events or circumstances which makes performance by the Supplier of any of
its obligations under this Agreement unlawful;
59.1.2 fire, flood, earthquake, terrorism, war, riot, civil disorder, rebellion or
revolution; or
59.1.3 other event or state of affairs which is outside of the control of the nonperforming Party or which would be an event of frustration at law,
if and to the extent that:
59.1.4 the non-performing Party is without fault in causing or contributing to that
default or delay; and
59.1.5 the default or delay could not have been prevented or circumvented by the
non-performing Party taking reasonable precautions or actions.
59.2
The Parties agree that Force Majeure does not include the prevention of a Party
complying with its obligations under this Agreement by any strikes by employees of
a Party or any sub-contractor of a Party (or both) unless the strike is part of an
industry wide campaign that does not arise out of a dispute between that Party or a
Party’s sub-contractor and one or more of its employees.
59.3
Neither Party will be liable for any default or delay in the performance of its
obligations under this Agreement if and to the extent that the default or delay is
caused by a Force Majeure.
59.4
Upon the occurrence of a Force Majeure the non-performing Party must promptly
notify the other Party’s Principal Contract Administrator by telephone (and must
confirm promptly in writing) and describe in reasonable detail:
59.4.1 the circumstances of the Force Majeure; and
59.4.2 the efforts which the non-performing Party proposes to use to recommence
performance of its obligations.
59.5
Page 28
In the event of a Force Majeure the non-performing Party will be excused from any
further performance of the obligations under this Agreement affected by the Force
Majeure for so long as:
59.5.1 the Force Majeure prevails; and
59.5.2 the non-performing Party continues to use its best efforts to recommence
performance whenever and to whatever extent possible without delay.
59.6
If the Force Majeure substantially prevents, hinders or delays the supply of any
Products or Services by the Supplier for more than two (2) Business Days then the
State may, at its option, direct the Supplier to procure those Products or Services so
affected from a third party, in which case the Supplier will be liable for payment for
the provision of those Products or Services by the third party for as long as the delay
in performance continues.
59.7
Products or Services by the Supplier for more than seven (7) consecutive days then
the State may, at its option and at its cost, procure such products or services so
affected from an alternative supplier.
59.8
Termination rights in respect of a Force Majeure are set out in clause 11.
59.9
The Parties acknowledge that:
59.9.1 defaults or delays in performance by the Supplier that are caused or
contributed to by the acts or omissions of the Supplier’s sub-contractors will
not relieve the Supplier of its obligations under this Agreement except to the
extent that a sub-contractor is itself subject to a Force Majeure and the
Supplier cannot reasonably circumvent the effect of the sub-contractor’s
default or delay in performance through the use of alternate sub-contractors,
workaround plans or other reasonable means; and
59.9.2
defaults or delays in performance by the State that are caused or contributed
to by the acts or omissions of another supplier of the State will not relieve the
State of its obligations under this Agreement except to the extent that the other
supplier is itself subject to a Force Majeure and the State cannot reasonably
circumvent the effect of the other supplier default or delay in performance
through the use of alternate suppliers, workaround plans or other reasonable
means.
PART 13 - POLICY MATTERS
60.
60.1
The Supplier must comply with the requirements as to conservation and protection
of the environment set out in Schedule 23.
60.2
The Supplier must comply with the requirements as to conservation of energy and
green energy usage set out in Schedule 23.
61.
62.
22
23
Page 29
EQUAL OPPORTUNITY
61.1
This clause applies where the Supplier is a relevant employer within
the meaning of the Workplace Gender Equality Act 2012 (Cth) (“WGE
Act”).
61.2
The Supplier must comply with its obligations under the WGE Act and
remain compliant until the expiry or termination of this Agreement.
61.3
The Supplier must take reasonable steps to ensure that
subcontractor appointed for the purposes of performing
Agreement and any Customer Agreement also complies with
WGE Act if that subcontractor is a relevant employer within
meaning of the WGE Act.
61.4
If the Supplier (or a subcontractor to the Supplier) fails to comply with
any of its obligations under the WGE Act, the State may terminate
this Agreement and any Customer Agreement on not less than twenty
(20) Business Days’ written notice to the Supplier without prejudice to
any other rights or remedies of the State 22.
any
this
the
the
FAILURE
62.1
The Supplier must establish arrangements for the management and
co-ordination of Significant ICT Incidents and ICT Failures in
accordance with Schedule 30.
62.2
If a Significant ICT Incident or ICT Failure occurs, the Supplier must
carry out the management and co-ordination of that Significant ICT
Incident or ICT Failure in accordance with the tasks and functions
allocated to the Supplier in Schedule 30 23.”
Page 30
EXECUTED AS AN AGREEMENT
MINISTER FOR INFRASTRUCTURE
)
by James Vincent Hallion, Chief
)
Executive of the Department for
)
Transport, Energy and Infrastructure
)
duly authorised in that regard and in
)
the presence of:
)
………………………………………….
……………………………………………………
Witness
……………………………………………………
Print Name
James Vincent Hallion as an authorised delegate of the Minister for Infrastructure hereby approves
Subsection 37.2 of this Agreement for the purposes of clause 13(2) of Schedule 1 of the Freedom
of Information Act 1991 (SA).
…………………………………….
James Vincent Hallion
Date:
This Agreement is executed by affixing the
COMMON SEAL of NEC AUSTRALIA
PTY LTD (ABN 86 001 217 527)
in the presence of two of its Directors or by
one of its Directors and the Company
Secretary
)
)
)
)
)
)
)
)
)
)
)
Signed:
..................................................
Signed:........................................
Name:
..................................................
Name: ..........................................
Position: ..................................................
Position: ....................................
SCHEDULE 1 INCLUDES VARIATIONS TO #4 DATED 15/2/2016
Page 1
SCHEDULE 1
1.
DEFINITIONS
In this Purchasing Agreement and in any Customer Agreement made under this
Purchasing Agreement:
1.1
“Alarm Monitoring” means monitoring Equipment alarms for the Sites as
set out in clause 25 of Schedule 5;
1.2
“Accept” or “Acceptance” means acceptance by a Customer of a
Product in accordance with clause 14 of Schedule 3;
1.3
“Acceptance Date” means:
(a)
where a Customer requests the Supplier perform Acceptance
Testing, the date on which that Customer issues a notice of
acceptance; or
(b)
where a Customer has required installation services, the date on
which that Customer advises the Supplier that the Product has been
satisfactorily installed; or
(c)
where a Customer decides to undertake Acceptance Testing, then
the date which is five (5) Business Days after the Product is
delivered to that Customer unless within those five (5) Business
Days that Customer has rejected the Product; or
(d)
where no Acceptance Testing or installation services are
undertaken, then the date which is two (2) Business Days after the
Product is Delivered to a Customer unless within those two (2)
Business Days that Customer has rejected the Product;
1.4
“Acceptance Testing” means the acceptance testing requirements
detailed in Schedule 5 and additional acceptance testing requirements
mutually agreed upon between a Customer and Supplier (if any);
1.5
“Agreed Customer Delay” has the meaning as set out in clause 20.9 of
Schedule 5;
1.6
“Agreed Delivery Date” means a date agreed between a Customer and
Supplier for the Delivery of Products to that Customer;
1.7
“Agreement” means this Purchasing
annexures, attachments and exhibits;
1.8
“Associated Services” means those Services set out in clause 13 of
Schedule 5;
1.9
“Authorised Person” for the purposes of a Customer Agreement has the
meaning as set out in clause 30.7.3 of Schedule 3;
1466 - PA NEC PABX Services and Equipment Schedule 01
Agreement,
its
schedules,
Page 2
1.10
“Business Day” means any day that is not a Saturday or a Sunday or a
public holiday in South Australia;
1.11
“Business Hours” means the hours between 8am and 6pm Central
Standard Time on a Business Day;
1.12
“Change of Control” means, in relation to a corporation, that the power
(whether formal or informal, whether or not having legal or equitable force,
whether or not based on legal or equitable rights and whether direct or
indirect, including through one or more entities):
(a)
to control more than half of the voting power of the corporation;
(b)
to control the composition of the board of directors or the
corporation;
(c)
to control more than half of the issued share capital of the
corporation excluding any part thereof which carries no right to
participate beyond a specified amount in the distribution of either
profit or capital;
resides with a person other than those holding that power on the
Commencement Date;
1.13
“Commencement Date” has the meaning set out in clause 9 of this
Agreement;
1.14
“Confidential Contract Conditions” has the meaning set out in:
1.15
1.16
(a)
for the purposes of this Agreement, clause 37.2 of this Agreement;
and
(b)
for the purposes of a Customer Agreement, clause 30.1.2 of
Schedule 3.
“Confidential Information” has the meaning as set out in:
(a)
for the purposes of this Agreement, as defined in the Head
Agreement;
(b)
for the purposes of a Customer Agreement, clause 30.1 of Schedule
3;
“Contract Documents” means the Head Agreement, this Agreement and
any Customer Agreements made under this Agreement including:
(a)
all respective schedules, annexures, attachments and exhibits; and
(b)
all documents incorporated by reference together with their
respective schedules, annexures, attachments and exhibits;
1.16A “Contract Levy” has the meaning set out in clause 1 of Schedule 9. 1
1.17
1
“Contracting and Official Records Standard” means the standard
relating to record management amended by the Manager (Director), State
Page 3
Records pursuant to section 14(1) of the State Records Act 1997 and
which can be found at http://www.archives.sa.gov.au;
1.18
“Contract Variation Proposal” has the meaning set out in clause 12 of
this Agreement;
1.19
“Critical Incident” means an Incident assigned as a Priority 1 Incident in
accordance with clause 36.3 of Schedule 5;
1.20
“Customer” means an Eligible Entity who has entered into a Customer
Agreement with the Supplier;
1.21
“Customer Agreement” means an agreement between the Supplier and
an Eligible Entity pursuant to clause 21;
1.22
“Customer Agreement Administrator” in respect of a Customer
Agreement means, in respect of a Party, the person appointed as such by
that Party in respect of that Customer Agreement;
1.23
“Customer Agreement Memorandum” or “CA Memorandum” has the
meaning as set out in clause 21;
1.24
“Customer Order” means an order placed by a Customer with the
Supplier in the form as determined by the State’s Principal Contract
Administrator from time to time;
1.25
“Customer’s Data” has the meaning set out in clause 32 of Schedule 3;
1.26
“Dedicated Personnel” means the Qualified Personnel provided by the
Supplier in accordance with clause 18.2 of Schedule 5, who possess all
the qualifications, and maintenance and support skills described in clause
18 of Schedule 5
1.27
“Default Notice” means:
1.28
(a)
in relation to this Agreement a notice described as such in clause
41.1; and
(b)
in relation to a Customer Agreement a notice described as such in
clause 35.1 of Schedule 3;
“Defect” or “Defective” means a Product that:
(a)
is damaged;
(b)
does not comply with the Specification;
(c)
does not comply with a requirement of a Customer Agreement or
Customer Order;
(d)
the performance of which deteriorates (other than what would be
reasonably expected from normal usage and the passage of time)
from the level of performance available at the time it is installed;
(e)
has a material defect; or
(f)
is otherwise faulty in any way.
Page 4
1.29
“Delegate” has the meaning as set out in clause 13 of this Agreement;
1.30
“Deliver” or “Delivered” means to deliver a Product to the Delivery Point
specified in a Customer Order;
1.31
“Delivered Date” means the date a Product is Delivered;
1.32
“Delivery Point” means the location at which the Product or Products are
to be Delivered as specified in a Customer Order;
1.33
“Demand Notice” means:
(a)
in relation to this Agreement a notice described as such in clause
41.3; and
(b)
in relation to a Customer Agreement a notice described as such in
1.34
“Disclosed Confidential Information” for the purposes of a Customer
Agreement has the meaning set out in clause 30.1.1 of Schedule 3;
1.35
“Discloser” for the purposes of a Customer Agreement has the meaning
as set out in clause 30.1.1 of Schedule 3;
1.36
“Dispute Notice” means:
1.37
(a)
in relation to this Agreement a notice issued under clause 44.2; and
(b)
in relation to a Customer Agreement a notice issued under clause
40.2 of Schedule 3;
“Dispute Resolution Procedure” means:
(a)
for the purpose of this Agreement, the procedure contemplated in
clause 44 of this Agreement; and
(b)
for the purpose of a Customer Agreement, the procedure
contemplated in clause 40 of Schedule 3;
1.38
“Documentation” means the items, and in the form, described in
Schedule 10;
1.39
“Duty Officer” means person appointed by a Customer, and notified to the
Supplier, as the point of contact between the Supplier and that Customer in
relation to operational issues;
1.40
“Duty Times” means the hours between 8:00am and 6:00pm South
Australian Central Standard Time on Business Days;
1.41
“Eligible Entities” has the meaning as set out in clause 6 of this
Agreement;
1.42
“Equipment” means the telephony equipment identified in a Customer
Agreement;
2
3
Page 5
1.43
“Equipped Ports” means any communication port of the Equipment that
is terminated by a programmed extension; 2
1.44
“Extension Term” has the meaning as set out in clause 10.4 of this
Agreement;
1.45
“Factory/Specialist Support” means the provision of engineering and
technical advice and support from the Supplier to resolve an Incident
despite its best efforts;
1.46
“Force Majeure” has the meaning as set out in:
(a)
for the purposes of this Agreement, clause 59 of this Agreement;
and
(b)
for the purposes of a Customer Agreement, clause 52 of Schedule 3;
1.47
“GST” means the tax imposed by the GST Law;
1.48
“GST Law” has the meaning attributed in the A New Tax System (Goods
and Services Tax) Act 1999 (Cth);
1.49
“GST Rate” is the percentage of the value of a Taxable Supply (as defined
in the GST Law) calculated as GST under the GST law;
1.50
“Head Agreement” means the agreement of that title entered into by the
State and the Supplier on 21 November 2005;
1.51
“ICT” means information and communications technology;
1.52
“ICT Threat” has the meaning set out in clause 25 of this Agreement and
clause 19 of Schedule 3;
1.53
“ISMF” or “Information Security Management Framework” means the
State Government of South Australia’s ‘Information Security Management
Framework’ as updated from time to time, a copy of the current version is
available at http://www.sa.gov.au/policy/ismf; 3
1.54
“Incentive” has the meaning as set out in clause 49.3;
1.55
“Incident” means any event or state of affairs which is not part of the
standard operation of the service provided by the Equipment or Voice
Network and which causes, or may cause, an interruption to, or a reduction
in the quality of service provided by the Equipment or Voice Network;
1.56
“Incident Report” means the initial report of an Incident, as recorded by
the Service Desk and identified by a number (Incident Report number),
containing the following information:
(a)
a summary of the Incident;
(b)
the Incident Priority;
(c)
contact details of the person who initiated the Incident Report; and
(d)
Page 6
details of any additional Site contacts;
1.57
“Incident Resolution Time” is the period of time taken by the Supplier to
resolve an Incident. The time starts from receipt of notification of the
Incident by the Supplier;
1.58
“Incident Response Time” is the period of time taken by the Supplier to
verify that an Incident has occurred and either attend at the Site where the
Incident has occurred, or establish RDA. The time starts from receipt of
notification of the Incident by the Supplier;
1.59
“Incident and Problem Management” has the meaning as set out in
1.60
“Incident and Problem Management Process” means the process the
Supplier must follow to manage and resolve Incidents and Problems
including the process set out in clause 20.10 of Schedule 5;
1.61
“Initial Term” has the meaning set out in clause 10.2;
1.62
“Insolvency Event” in relation to the Supplier means:
(a)
an administrator is appointed to the Supplier or action is taken to
make an appointment;
(b)
the Supplier resolves to be wound up;
(c)
an application is made to a court for an order or an order is made
that the Supplier be wound up (whether on grounds of insolvency or
otherwise);
(d)
the Supplier ceases to carry on business;
(e)
a receiver or a receiver and manager of property of the Supplier is
appointed whether by a court or otherwise;
(f)
an application is made to a court for an order appointing a liquidator
or provisional liquidator in respect of the Supplier or one of them is
appointed, whether or not under an order;
(g)
the Supplier enters into a compromise or arrangement with its
creditors or a class of them; or
(h)
the Supplier is or states that it is unable to pay its debts as and when
they fall due;
1.63
“Intellectual Property Rights” means any patent, copyright, trademark,
trade name, design, trade secret, know how, semi conductor, circuit layout,
or other form of intellectual property right whether arising before or after the
execution of this Agreement and the right to registration and renewal of
those rights;
1.64
“Key Performance Indicator Failure” has the meaning as set out in
Schedule 15;
1.65
“Key Performance Indicators” or “KPIs” means the key performance
indicators as specified in Schedule 15;
Page 7
1.66
“Laws” means any legislation, regulation, by-law, ordinance or
subordinate legislation in force from time to time in the State of South
Australia applicable to the performance of this Agreement;
1.67
“Major Incident” means an Incident assigned as a Priority 2 Incident in
accordance with Schedule 5;
1.68
“Maximum Delivery Time” has the meaning ascribed to that term in
clause 11 4 of Schedule 5;
1.69
“Maximum Resolution Time” means the maximum Incident Resolution
Time that the Supplier is allowed in order to meet the ‘Incident Resolution
Time Service Level’ set out in table 2 of clause 36 of Schedule 5;
1.70
“Minister” means a Minister of the Crown in right of the State of South
Australia whether acting as a corporation or not;
1.71
“Minor Incident” means an Incident assigned as a Priority 3 Incident in
accordance with Schedule 5;
1.72
“Negative Vetting Level 2” means a level where a person can access
information or resources classified ‘Protected’, ‘Confidential’, ‘Secret’ and
‘Top Secret’;
1.73
“National Security Information” means official information (whether of
the Commonwealth or the State) the unauthorised disclosure of which
could affect the security of Australia (including the State);
1.73A “Nominated Agency” means the State Agency nominated by the State’s
PCA which has responsibility to calculate, invoice and receive the Contract
Levy in accordance with Schedule 9; 5
4
5
1.74
“PABX” means ‘Private Automatic Branch Exchange’;
1.75
“Party” means:
(a)
in the context of this Agreement, the State or the Supplier (as the
case may be); and
(b)
in the context of a Customer Agreement, the relevant Customer or
the Supplier (as the case may be);
1.76
“Policies” means the policies as specified in Schedule 13 or any
Customer specific policies specified in a Customer Agreement;
1.77
“Practical Work Around” means a temporary work around solution
agreed between a Customer (which may impose conditions, including time
limits) and the Supplier that restores the effective operation of the Voice
Network in the absence of rectifying the malfunction of the Equipment;
1.78
“Prescribed Rate” means the rate of interest that is two percentage points
(2%) higher than the Benchmark Rate published by the National Australia
Bank Limited (ABN 12 004 044 937), or its successor rate (as nominated
by the State);
Page 8
1.79
“Preventative Maintenance” has the meaning as set out in clause 27.1 of
Schedule 5;
1.80
“Price” means the price payable by a Customer for the Products and
Services as specified in Schedule 17;
1.81
“Principal Contract Administrator”, in respect of the State or the
Supplier, means the person appointed in respect of that party from time to
time under clause 13 of this Agreement;
1.82
“Priority” means the priority assigned to an Incident under clause 36.3 of
Schedule 5, to indicate the importance of the Incident, and as identified
with a number (1 to 3) and named (Critical, Major, and Minor) in the column
titled “Priority” in table 3;
1.83
“Products” means PABX component equipment, systems and associated
software products appearing in the Supplier’s Product List which are
suitable for use on a Voice Network;
1.84
“Qualified Personnel” means an employee, consultant, subcontractor or
agent of the Supplier, including the Dedicated Personnel, who performs the
Services and possesses all the qualifications, and maintenance and
support skills described in clause 18 of Schedule 5;
1.85
“Quarter” means each three (3) month period ending on the last day of
the March, June, September and December;
1.86
“Recipient” for the purposes of a Customer Agreement has the meaning
as set out in clause 30.1.1 of Schedule 3;
1.87
“Rectification Period” has the meaning as set out:
(a)
for the purposes of this Agreement, in clause 41.1 of this Agreement;
and
(b)
for the purposes of a Customer Agreement, in clause 35.1 of
Schedule 3;
1.88
“Reject” or “Rejected” has the meaning set out in clause 14 of Schedule
3;
1.89
“Release Management Services” means services necessary to
implement, manage or coordinate release of hardware, software and
associated documentation across a Voice Network;
1.90
“Remote Diagnostic Access” or “RDA” means the ability to perform
remote diagnostics, remote monitoring, remote analysis and remote
Incident Resolution;
1.91
“Reports” means those reports required to be submitted to the State by
the Supplier as set out in Schedule 7;
1.92
“Request for Change” or “RFC” means any written, verbal or electronic
request for Change from a Customer or a User;
1.93
“Security Services” means those security requirements set out in clause
24 of Schedule 5;
Page 9
1.94
“Service Debit” means a service debit as specified in Schedule 16;
1.95
“Service Desk” means the service desk provided by the Supplier in
accordance with clause 19 of Schedule 5;
1.96
“Service Levels” means the service level designated in or determined in
accordance with Schedule 5 or a Customer Order or Customer Agreement
in respect of a Product or Service;
1.97
“Service Request” means any written, verbal or electronic request for
Services from a Customer or a User, other than a Request for Change or a
request to resolve an Incident;
1.98
“Service Restrictions” means the restrictions on the Supplier when
performing the Services as described in clause 30 of Schedule 5;
1.99
“Services” means all and any (as the context requires) of the Services
described in Schedule 5;
1.100 “Specifications” means the applicable technical
specifications for that Product or those Services;
and
functional
1.101 “Site” means the location of Equipment, as specified by a Customer in a
Customer Agreement or Customer Order;
1.102 “Spare Part” means any part (excluding software) required to be installed
on the Equipment to ensure that the Equipment is fully operational;
1.103 “Standards” means the standards as specified in Schedule 13 and
Schedule 19 6;
1.104 “State Agency” has the meaning as set out in clause 5 of the Head
Agreement;
1.105 “State Agency Customer” means a Customer that is a State Agency;
1.106 “State’s Data” has the meaning as set out in clause 39 of this Agreement;
1.107 ““Significant ICT Incident” has the meaning set out in clause 2.10 of
Schedule 30 7” ;
1.108
8
;
1.109 “Sub-Contractor” means a third party that the Supplier has or will utilise,
with approval of the State, to undertake certain activities under this
Agreement;
1.110 “Substantial Sum” has the meaning as set out in clause 6.8 of Schedule
3;
1.111 “Substitute Products” means the temporary or permanent supply of
substitute Products of an equivalent or better specification to the Product
6
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Amended by Variation No.4# DATED (Knet: 9924758)
8
7
Page 10
being repaired, replaced or otherwise being substituted by the Supplier in
accordance with the requirements of Schedule 5;
1.112 “Supplier” means NEC Australia Pty Ltd (ABN 86 001 217 527);
1.113 “Supplier’s Product List” means a list (prepared by the Supplier and
approved by the State from time to time during the Term) of Products
suitable for use on a Voice Network;
1.114 “Support Facilities” means any tools, knowledge or assistance required
to enable the Qualified Personnel to perform the Services;
1.115 “Target Delivery Time” means five (5) Business Days from receipt by the
Supplier of a Customer Order to Delivery of that Product to the Delivery
Point.
1.116 “Tax Invoice” has the meaning attributed in the GST law;
1.117 “Term” has the meaning as set out in clause 10.1 of this Agreement;
1.118 “Termination for Convenience Costs” means the Supplier’s termination
for convenience costs determined in accordance with Schedule 31;
1.119 “Third Party Support” has the meaning as set out in clause 31 of
Schedule 5;
1.120 “Transition In Plan” means the plan referred to in Schedule 21;
1.121 “Transition Out Plan” means the plan set out in Schedule 22;
1.122 “the State” means the Crown in right of the State of South Australia;
1.123 “Uncleared Personnel” has the meaning as set out in clause 40.7;
1.124 “Undelivered Product” means Product that has not at the relevant time
been Delivered;
1.125 “Undisputed Invoice” has the meaning as set out in clause 29.3 of
Schedule 3;
1.126 “User” means any individual user of any component of Equipment;
1.127 “Voice Network” means the Equipment and any telephony network
identified in a Customer Agreement or Customer Order;
1.128 “Voice Network Management Services” means all of the Services set
out in clause 20 of Schedule 5;
1.129 “Warranty” means the Supplier’s warranties as described in clause 18 of
Schedule 3;
1.130 “Warranty Period” means the period during which Warranty Services are
required to be provided as specified in Schedule 5; and
1.131 “Warranty Obligations” means the warranty obligations set out in clause
8 of Schedule 5.
Page 11
1.132 “Cartel Conduct” means conduct by two or more parties who are
competitors (or would be but for the conduct) who enter into a contract,
arrangement or understanding that involves price fixing, output restrictions,
allocating customers, suppliers or territories, or bid-rigging, as defined in
s44ZZRD of the Competition and Consumer Act 2010 (Cth) 9;
1.133 “Effective Date” means the date that the last of the Parties signs the
Extension and Variation Agreement No. 2 10;
1.134 “End-of-Life” is the date published by the Supplier as the date that the
Supplier will no longer develop or manufacture parts for a particular item of
Equipment 11;
1.135 “End-of-Support” means the date published by the Supplier as the date
that the Supplier will no longer provide parts or technical support for a
particular item of Equipment 12;
1.136 “Extension and Variation Agreement No. 2” means the document of that
title made between the Parties to extend the Term and amend the
Agreement 13;
1.137 “ICT Failure” has the meaning set out in clause 2.5 of Schedule 30 14;
1.138 “ICT Support Plan” means a plan of that title, a copy of which may be
accessed at: http://digital.sa.gov.au/resources/topic/securing-resilience 15;
1.139 “Information Privacy Principles” or “IPPS” means those ‘Principles’
more particularly described in the State’s ‘Information Privacy Principles
(IPPS) Instruction’ (as amended from time to time), a copy of the latest
instruction many be viewed at: http://dpc.sa.gov.au/premier-and-cabinetcirculars 16;
1.140 “Personal Information” means information to which the Supplier
has
access in connection with this Agreement, comprising 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
a natural person whose identity is apparent, or can reasonably be
ascertained, from the information or opinion 17;
1.141 “StateNet Service Management Processes” means the processes and
procedures issued by the State and
amended from time to time a copy
of which appears in Exhibit 1 18;
1.142 “Supplier Personnel” means all persons representing the Supplier under
the Contract Documents including without limitation, the Supplier’s officers,
employees, agents and subcontractors (and their staff)” and 19
9
11
12
13
14
15
16
17
18
10
Page 12
1.143 “Target Warranty Resolution Time” means thirty (30) days from the
Acceptance Date of the Product 20;
2.
INTERPRETATION
2.1
This Agreement and any Customer Agreement made under this Agreement
will be interpreted in accordance with this clause 2 unless the Agreement
provides otherwise.
Conditional Permissions
2.2
Where the Agreement makes provision for a Party to permit or approve
something, the Party may permit or approve it subject to conditions
specified by the Party.
Good Faith
2.3
Where the Agreement obliges a Party to negotiate or deal with the other
Party in good faith, the Party must:
2.3.1
genuinely attempt to find a mutually acceptable solution; and
2.3.2
take account of the other Party’s interests without being obliged to
put those interests before its own.
Other Interpretation provisions
19
20
2.4
Clause headings will be disregarded in interpreting the Agreement.
2.5
References to legislation include:
2.5.1
legislation repealing, replacing or amending that legislation; or
2.5.2
any statutory instrument made under that legislation.
2.6
A reference to the singular includes the plural and vice versa.
2.7
A reference to a natural person includes:
2.7.1
the person’s heirs, executors or permitted assigns; or
2.7.2
a corporation, partnership, trust or other legal entity, or to a joint
venture.
2.8
A reference to a body corporate includes its successors or permitted
assigns.
2.9
A reference to monetary amount is a reference to that amount in Australian
currency.
2.10
A reference to days or months means calendar days or months unless
otherwise indicated.
Page 13
2.11
The fact that a Party proposed or drafted a provision of a contract
document is not relevant to its interpretation.
2.12
Where a provision of a contract document includes an example of the
operation of a provision:
2.12.1 the example shall not be taken to be exhaustive; and
2.12.2 if the example is inconsistent with the provision, the provision
prevails.
2.13
Unless otherwise indicated a reference to a clause, schedule, annexure,
attachment or exhibit refers to a clause, schedule, annexure, attachment or
exhibit of this Agreement.
Priority of Documents
2.14
The schedules, annexure, attachments and exhibits of the Agreement form
part of the Agreement.
2.15
The Agreement, and its schedules, annexure, attachments and exhibits,
have priority in that order.
2.16
If and to the extent that any provision of this Agreement is inconsistent with
the Head Agreement, in the sense that it would not be possible to comply
with both, the Head Agreement prevails.
2.17
If and to the extent that any provision of this Agreement is inconsistent with
a Customer Agreement, in the sense that it would not be possible to
comply with both, this Agreement prevails.
Page1
SCHEDULE 2
ELIGIBLE ENTITIES
Eligible Entities are Administrative Units and other agencies and instrumentalities of the
Crown in right of the State of South Australia with the exception of those designated in the
following Part 1 and with the addition of entities designated in the following Part 2.
Part 1 - State Agencies excluded from Eligible Entities
- NIL -
Part 2 - Other entities included in Eligible Entities
- NIL -
1466 PA NEC PABX Services and Equipment Schedule 02
SCHEDULE 3 INCLUDES VARIATIONS #4 DATED 15/2/2016
Page i
of iii
SCHEDULE 3
CONDITIONS OF A CUSTOMER AGREEMENT (PABX SERVICES AND EQUIPMENT)
TABLE OF CONTENTS
PART 1 - PRELIMINARY.................................................................................................................... 1
1.
DEFINITIONS AND INTERPRETATION .................................................................................. 1
PART 2 -TERM, CUSTOMER ORDERS AND VARIATION ......................................................... 1
2.
TERM.............................................................................................................................................. 1
3.
AUTOMATIC EXTENSION ......................................................................................................... 1
4.
CUSTOMER ORDERS ................................................................................................................ 2
5.
VARIATION ................................................................................................................................... 3
PART 3 - TERMINATION ................................................................................................................... 3
6.
TERMINATION ............................................................................................................................. 3
PART 4 - ADMINISTRATION............................................................................................................. 4
7.
CUSTOMER AGREEMENT ADMINISTRATORS .................................................................. 4
8.
MEETINGS AND COMMUNICATION ...................................................................................... 5
9.
INFORMATION REPOSITORY ................................................................................................. 5
10.
REPORTS.................................................................................................................................. 5
PART 5 - SUPPLIER OBLIGATIONS .............................................................................................. 5
11.
PRODUCTS AND SERVICES - COMPLIANCE TO SPECIFICATION........................... 5
12.
DELIVERY ................................................................................................................................. 6
13.
OWNERSHIP AND RISK IN THE PRODUCTS .................................................................. 6
14.
ACCEPTANCE AND REJECTION........................................................................................ 7
15.
ACCEPTANCE TESTING ....................................................................................................... 8
16.
INSTALLATION SUPPORT ................................................................................................... 9
17.
DOCUMENTATION ................................................................................................................. 9
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18.
SUPPLIER’S WARRANTIES ................................................................................................. 9
19.
ICT THREATS AND MALICIOUS SOFTWARE ............................................................... 10
20.
DISPOSAL .............................................................................................................................. 10
21.
POLICIES, STANDARDS AND OTHER REQUIREMENTS ........................................... 11
22.
COLLABORATION, AND SERVICE MANAGEMENT 1 ................................................... 11
PART 6 - SOFTWARE AND INTELLECTUAL PROPERTY ...................................................... 11
23.
INTELLECTUAL PROPERTY .............................................................................................. 11
24.
VESTING ................................................................................................................................. 12
25.
SOFTWARE ............................................................................................................................ 12
26.
INTELLECTUAL PROPERTY RIGHTS.............................................................................. 12
PART 7 - PRICE, INVOICING AND PAYMENT............................................................................ 12
27.
PRICE ....................................................................................................................................... 12
28.
GST COMPONENT PAYABLE ........................................................................................... 13
29.
INVOICING AND PAYMENT ................................................................................................ 13
PART 8 - CONFIDENTIALITY, PRIVACY ..................................................................................... 14
30.
CONFIDENTIALITY ............................................................................................................... 14
31.
INFORMATION PRIVACY .................................................................................................... 17
32.
DATA ........................................................................................................................................ 17
PART 9 - SECURITY ......................................................................................................................... 18
33.
CUSTOMER SECURITY REQUIREMENTS...................................................................... 18
PART 10 - OTHER MATTERS......................................................................................................... 19
34.
SUB-CONTRACTING ............................................................................................................ 19
35.
DEFAULT AND RECTIFICATION ....................................................................................... 19
36.
REMEDIES .............................................................................................................................. 20
37.
INDEMNITY AGAINST THIRD PARTY CLAIMS.............................................................. 21
38.
INDEMNITY PROCEDURES ................................................................................................ 21
1
39.
Page iii
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AUDIT FOR NON STATE AGENCIES ............................................................................... 22
PART 11 - DISPUTES ....................................................................................................................... 23
40.
DISPUTES ............................................................................................................................... 23
41.
DISPUTE RESOLUTION INVOLVING OTHER SUPPLIERS......................................... 23
PART 12 - TRANSITION................................................................................................................... 24
42.
TRANSITION IN ..................................................................................................................... 24
43.
TRANSITION OUT ................................................................................................................. 24
PART 13 - OTHER ............................................................................................................................. 24
44.
APPLICABLE LAW ............................................................................................................... 24
45.
LEGAL COMPLIANCE ......................................................................................................... 24
46.
JURISDICTION OF COURTS .............................................................................................. 24
47.
ASSIGNMENT ........................................................................................................................ 24
48.
RELATIONSHIP BETWEEN THE PARTIES ..................................................................... 25
49.
WAIVER ................................................................................................................................... 25
50.
READING DOWN AND SEVERANCE ............................................................................... 25
51.
NOTICES ................................................................................................................................. 25
52.
FORCE MAJEURE ................................................................................................................ 26
53. ..... MANAGEMENT AND COORDINATION OF A SIGNIFICANT ICT INCIDENT OR ICT
FAILURE 2
2
Amended by Variation No.4# DATED: 15/2/2016 (Knet:9924758)
Page
1
PART 1 - PRELIMINARY
1.
1.1
Except as follows, the definitions and rules of interpretation in Schedule 1 apply
to this Agreement.
1.2
Reference to:
1.2.1 “Memorandum” means the memorandum negotiated and signed by
the Parties for the purposes of entering into this Agreement;
1.2.2 “Party” means the Customer or the Supplier;
1.2.3 “Purchasing Agreement” means the agreement of that title entered
into by the State and the Supplier pursuant to which this Agreement is
formed;
1.2.4 “Term” has the meaning as set out in clause 2; and
1.2.5 “this Agreement” means the Customer Agreement between
Customer and Supplier formed by the process contemplated in the
Purchasing Agreement.
1.3
Reference to a clause is reference to a clause in this Agreement unless
otherwise indicated.
1.4
Reference to a Schedule refers to a Schedule to the Purchasing Agreement.
PART 2 -TERM, CUSTOMER ORDERS AND VARIATION
2.
TERM
This Agreement commences on the date the Memorandum is signed by both Parties
and continues in force until the date of expiry, taking account of any extensions, in
accordance with the Memorandum unless terminated earlier in accordance with the
provisions of this Agreement.
3.
AUTOMATIC EXTENSION
Unless otherwise stipulated in an extension of the Purchasing Agreement or
otherwise notified by the Customer during the existing Term, this Agreement will
automatically extend on the extension of the Purchasing Agreement (and the expiry
date specified in the Customer Agreement Memorandum is extended accordingly) 3.
3
Amended by Variation No.4# DATED: 15/2/2016 (Knet: 9924758)
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4.
CUSTOMER ORDERS
Standing Offer
4.1
The Supplier acknowledges that this Agreement constitutes a standing offer for
the duration of the Term by the Supplier to supply Products and Services on the
terms set out in this Agreement.
Use of Customer Orders
4.2
If the Customer wants to purchase Products and Services:
4.2.1 on the terms as set out in this Agreement (unamended); and
4.2.2 as priced in Schedule 17 (as amended from time to time),
then the Customer must issue a Customer Order. The Customer Order takes
effect on receipt by the Supplier, and the Supplier must within one (1)
Business Day of receipt of such a Customer Order provide written
confirmation of receipt of the Customer Order to the Customer.
4.3
If the Customer wants to purchase Products and Services other than as priced
or listed in Schedule 17 (as amended from time to time) then the Customer
must issue a Customer Order and the Supplier must within five (5) Business
Days of receipt of such a Customer Order provide the Customer with a quote
which must be open for acceptance by the Customer for at least twenty (20)
Business Days. The Customer Order takes effect on acceptance by the
Customer of the Supplier’s quote.
Cancellation
4.4
The Customer may cancel a Customer Order by notice (which need not be
written notice) to the Supplier provided that:
4.4.1 the Customer has not accepted the Products (if any) specified in the
Customer Order; or
4.4.2 the Supplier has carried out all of the Services specified in the
Customer Order (if any).
Form of Customer Order
4.5
The Customer Order shall be in the form as determined by the State’s Principal
Contract Administrator.
Variation of a Customer Order (Services)
4.6
In order to vary Services under this Agreement (including increasing, reducing,
cancelling or changing Services and/or Service Levels), the Customer must
issue a Customer Order to the Supplier.
4.7
A Customer Order takes effect to vary the Services under this Agreement: on
acceptance by the Customer of the Supplier’s quote as contemplated by clause
4.3.
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5.
VARIATION
5.1
If the State and the Supplier agree to amend Schedule 3, pursuant to the
contract variation procedure set out in the Purchasing Agreement, then the
terms of this Agreement will be amended accordingly.
5.2
For the avoidance of doubt:
5.2.1 a Customer Order cannot vary the terms and conditions of this
Agreement; and
5.2.2 a Customer may only purchase the Products and Services specified in
this Agreement.
PART 3 - TERMINATION
6.
TERMINATION
Termination for Default or Insolvency
6.1
A Customer may terminate a Customer Agreement if the Supplier is in breach
and fails to rectify the breach within the time allowed in a Default Notice issued
by the Customer.
6.2
The Customer may terminate the Customer Agreement if an Insolvency Event
occurs with respect to the Supplier.
6.3
The Customer may terminate the Customer Agreement if a Key Performance
Indicator Failure occurs.
Termination for Convenience
6.4
A Customer may, by written notice to the Supplier, terminate a Customer
Agreement for convenience.
6.5
If a Customer Agreement is terminated pursuant to the preceding sub-clause
the Customer will be liable to pay Termination for Convenience Costs.
6.6
The Customer must pay any Termination for Convenience Costs for which the
Customer is liable under clause 6.5 of this Schedule 3 within thirty (30) days of
the amount being agreed or determined in accordance with Schedule 31.
Termination by Supplier
6.7
Subject to the following sub-clause, the Supplier may terminate this Agreement
by written notice to the Customer if the Customer fails to comply with a Demand
Notice issued by the Supplier (pursuant to clause 35.3) in relation to an
Undisputed Invoice. If this occurs the Supplier must, as soon as practicable,
provide the State’s Principal Contract Administrator with a copy of the relevant
termination notice.
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6.8
The right of termination by the Supplier under the preceding sub-clause only
operates where the amount of the Undisputed Invoice is equal to or exceeds the
sum of $75,000 (‘Substantial Sum’).
Effect of Termination or Expiration
6.9
Upon termination or expiration of this Agreement each Party must return to the
other all Confidential Information provided to it by the other Party.
Survival of Obligations
6.10
Notwithstanding any termination or expiration of this Agreement, the following
provisions of this Agreement will survive in their entirety and continue to apply:
6.10.1 this clause 6.10 - Survival of Obligations;
6.10.2 clause 18 – Supplier’s Warranties
6.10.3 clause 23 - Intellectual Property;
6.10.4 clause 24 – Vesting;
6.10.5 clause 26 - Intellectual Property Rights;
6.10.6 all of the provisions in Part 8 - Confidentiality, Privacy;
6.10.7 all of the provisions in Part 9 - Security;
6.10.8 clause 34 - Sub-contracting;
6.10.9 clause 37 - Indemnity Against Third Party Claims;
6.10.10 clause 38 - Indemnity Procedures;
6.10.11clause 39 - Audit for Non State Agencies;
6.10.12 clause 43 - Transition Out;
6.10.13 clause 44 - Applicable Law;
6.10.14 clause 46 - Jurisdiction of Courts; and
6.10.15 clause 50 - Reading Down and Severance.
PART 4 - ADMINISTRATION
7.
CUSTOMER AGREEMENT ADMINISTRATORS
7.1
This Agreement will be administered on behalf of each Party by a Customer
Agreement Administrator appointed on that Party’s behalf.
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8.
7.2
A Party’s Customer Agreement Administrator may exercise the powers and
functions under this Agreement of the Party he or she represents, and has
authority to bind it in respect of this Agreement.
7.3
Each Party’s Customer Agreement Administrator is the person designated in
the CA Memorandum.
7.4
A Party may change its Customer Agreement Administrator by written notice to
the other Party.
7.5
The Customer Agreement Administrator may delegate any authority, and any
authority so delegated may be sub-delegated, except to the extent that the
terms of the delegation limit or prohibit sub-delegation.
7.6
A Customer Agreement Administrator who delegates authority under the
preceding sub-clause must, as soon as practicable, give to the other Party’s
Customer Agreement Administrator written notification of the person to whom
the delegation has been made (“Delegate”) and the nature and scope of the
Delegate’s authority.
MEETINGS AND COMMUNICATION
The Supplier must comply with the Customer’s meetings and communication
requirements, if any, as set out in Schedule 24.
9.
INFORMATION REPOSITORY
The Supplier must provide the Customer with information as set out in Schedule 6.
10.
REPORTS
The Supplier must comply with the Customer’s reporting requirements, if any, as set
out in Schedule 7 and each Customer Agreement.
PART 5 - SUPPLIER OBLIGATIONS
11.
PRODUCTS AND SERVICES - COMPLIANCE TO SPECIFICATION
11.1
The Products and Services required under this Agreement are those specified
in the Memorandum and each Customer Order.
11.2
The Supplier must supply:
11.2.1 the Products required under this Agreement in accordance with the
requirements and Specifications (if any) set out in Schedule 5; and
11.2.2 the Services required under this Agreement in accordance with the
Service Levels set out in Schedule 5, the memorandum and each
Customer Order.
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12.
DELIVERY
Information
12.1
The Supplier must notify the Customer at least one (1) Business Day before a
Delivery of Product to:
12.1.1 Notify the Customer of the expected date of Delivery,
12.1.2 confirm the Delivery Point; and
12.1.3 confirm any other Delivery arrangements.
Preservation of Product
12.2
The Supplier must package and handle Products so as to avoid damage to the
Products in the course of Delivery.
Time
12.3
The Supplier must Deliver the Products to the Delivery Point:
12.3.1 on or before the Agreed Delivery Date (if there is one); or
12.3.2 if there is no Agreed Delivery Date, seek to deliver within the Target
Delivery Time set out in Schedule 5, or in any event, within the
Maximum Delivery Time as set out in Schedule 5.
Delay
12.4
If the Supplier fails (for reasons other than a fault of the Customer) to Deliver a
Product within the time required under this clause 12, the Customer may:
12.4.1
up to the Delivery Date, cancel the Customer order pertaining to the
Product that has not been delivered; or
12.4.2
after Delivery, apply a Service Debit as calculated in accordance with
Schedule 16.
Effect of termination or cancellation for delay
13.
12.5
Cancellation by the Customer of a Customer Order for delay under the
preceding sub-clause does not affect the Parties obligations in respect of any
other Product that has already been Delivered and Accepted, or any Product,
not cancelled, which is still to be Delivered; and
12.6
Upon cancellation by the Customer for delay under the preceding sub-clause
the Supplier must immediately refund to the Customer any moneys previously
paid by the Customer to the Supplier in respect of Undelivered Products for the
cancelled Customer Order.
OWNERSHIP AND RISK IN THE PRODUCTS
13.1
Title in the Product passes to the Customer on Acceptance.
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13.2
14.
Risk in the Product passes to the Customer on Delivery.
ACCEPTANCE AND REJECTION
Acceptance Testing
14.1
The Customer or the Supplier (if requested) may undertake Acceptance
Testing.
14.2
Unless agreed otherwise, where the Customer undertakes Acceptance Testing,
the Customer has five (5) Business Days from Delivery to complete this process
before the Product is deemed to be Accepted.
14.3
If the Product does not satisfy the Acceptance Testing the Product is taken to
be Defective and the Customer has the rights set out in this clause 14 in respect
of the Defective Product.
Rejection
14.4
Subject to clause 14.5, the Customer may Reject a Product if it is Defective.
14.5
The Customer may not Reject a Product after Acceptance.
14.6
If the Customer Rejects a Product under clause 14.4 the Customer may, acting
reasonably:
14.6.1
require repair or replacement of the Product (or that part of the Product
that is Defective). The Customer will not be liable to pay for the
Rejected Product until such time as such Rejected Product is repaired
or replaced to the Customer’s reasonable satisfaction in accordance
with this clause; or
14.6.2
cancel that part of the Customer Order relating to the Defective
Product and require its removal in which case the Customer will not be
liable to pay for the Rejected Product.
Effect of Cancellation
14.7
14.8
Cancellation by the Customer under the preceding sub-clause does not:
14.7.1
affect the Parties obligations in respect of any other Product that has
already been Delivered and Accepted, or any Product, not cancelled,
which is still to be Delivered; or
14.7.2
preclude the Customer from recovering the amount of any loss
suffered by the Customer resulting from the Product being Defective;
and
Upon cancellation by the Customer under the preceding sub-clause the
Supplier must immediately refund to the Customer any moneys previously paid
by the Customer to the Supplier in respect of the Rejected Product.
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Requirement to Remove
14.9
If a Customer Rejects a Product the Supplier must within five (5) Business
Days, or such other period as may be agreed, remove the Product from the
Customer’s premises. If the Supplier fails to comply with the request within ten
(10) Business Days of receipt of the request, the Customer may:
14.9.1
return the Product to the Supplier and claim from the Supplier the costs
incurred in doing so; or
14.9.2
move the Product to another location for storage and claim the costs of
transport and storage from the Supplier.
Effect of Acceptance
14.10 Acceptance of the Products by a Customer does not relieve the Supplier of its
obligations or Warranties under this Agreement.
Title and risk
14.11 In the event of Rejection of any Product under this clause 14, risk in that
Product shall, at the time the Supplier takes possession of the Product, pass to
the Supplier.
15.
ACCEPTANCE TESTING
15.1
A Customer Order may specify that Acceptance Testing is required in relation to
a particular Product and where required must be undertaken by the Supplier or
the Customer in accordance with Schedule 5.
15.2
If the Customer requires Acceptance Testing of a Product, the Customer Order
must specify Acceptance Testing requirements including:
15.2.1 the time required for Acceptance Testing and the time allowed for
Acceptance of the Product;
15.2.2 the nature and extent of the Acceptance Testing;
15.2.3 whether the Customer will carry out the Acceptance Testing or requires
the Supplier to do so;
15.2.4 the content and form of any reports required of the Acceptance Testing
results.
15.3
If Acceptance Testing are to be conducted by the Supplier, the Customer Order
must provide:
15.3.1 the location where the Acceptance Testing is to be conducted;
15.3.2 the opportunity for the Customer to observe or participate in the
conduct of the Acceptance Testing;
15.3.3 documentation of the test results;
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15.3.4 certification by the Supplier of the accuracy and completeness of the
test results.
15.4
If Acceptance Testing are conducted by the Supplier, the Supplier must ensure
that:
15.4.1 the Acceptance Testing is rigorously carried out;
15.4.2 the results of testing are fully and accurately reported; and
15.4.3 that any failing or defect in the Product is fully reported to the
Customer.
16.
INSTALLATION SUPPORT
The Supplier must provide all advice, assistance and information reasonably required
to enable installation and configuration of the Products to a Customer or a third party
nominated by the Customer.
17.
DOCUMENTATION
The Supplier must provide the Documentation as set out in Schedule 10.
18.
SUPPLIER’S WARRANTIES
The Supplier warrants and represents that:
18.1
in relation to the Products:
18.1.1 it has the right to transfer clear title in each Product to the Customer;
18.1.2 each Product purchased by a Customer under this Agreement:
18.2
(a)
will on Delivery be free from any charge or encumbrance;
(b)
is fit for the purpose disclosed by the State;
(c)
will during the Warranty Period be free from any defect or
omission in design, performance, workmanship and materials;
(d)
complies with and operates
Specifications and all Standards;
(e)
will be new and will not have been previously installed other
than for the purpose of testing by or on behalf of the Customer;
and
(f)
does not infringe any third party property rights;
(g)
the performance of the Product must not deteriorate during the
Warranty Period (other than what would be reasonably
expected from normal usage and the passage of time) from the
level of performance available at the time it is installed.
in relation to the Services:
in
accordance
with
the
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18.2.1 it will perform the Services using appropriately qualified personnel; and
18.2.2 it will perform the Services in accordance with the Service Levels;
18.2.3 it has access to all the necessary facilities and equipment to perform
the Services; and
18.2.4 it has and will utilise the necessary skills, experience and expertise to
perform the Services;
18.3
in relation to supply of Products by resale:
18.3.1 it has the right to resell Products sourced from third party suppliers,
and
18.3.2 if requested by the Customer, must produce evidence of its right to
resell Products, including without limitation, evidence of good title.
19.
ICT THREATS AND MALICIOUS SOFTWARE
19.1
19.1.1 introduce or permit the introduction into the Customer’s ICT
Infrastructure of any software, including, but not limited to, Malicious
Software, unless its introduction has been authorised in writing by the
State or a Customer; or
19.1.2 undertake, facilitate or permit any “denial of service attack” or other
unauthorised communication with the Customer’s ICT Infrastructure
that has the effect or purpose of disrupting, damaging or degrading the
performance of that infrastructure,
(“ICT Threat”)
19.2
19.2.1 “Customer’s ICT Infrastructure” means the computing
communications infrastructure owned or used by the Customer;
and
19.2.2 “Malicious Software” means software designed or intended to cause
harm either by damaging or disrupting the performance of ICT
Infrastructure or by transmission of information without the authority of
the person to whom that information is personal or confidential.
19.3
20.
The Supplier must indemnify the Customer in respect of all loss damage claims
and expenses arising from a breach by the Supplier of its obligations under this
clause.
DISPOSAL
The Supplier must provide the disposal services as set out in Schedule 5 and
Schedule 23.
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21.
22.
21.1
The Supplier must ensure the Products comply with the Policies, Standards and
other requirements set out in Schedule 13.
21.2
The Supplier must comply with Customer specific policies, standards and other
requirements specified in this Agreement or a Customer Order.
COLLABORATION AND SERVICE MANAGEMENT
22.1
The Deliverables supplied by the Supplier will probably interact in some way
with products or services supplied by the State or another supplier to the
Customer.
22.2
If and to the extent required by the Customer, the Supplier must engage
collaboratively with the State or the other supplier or both in an effort to ensure
that the products and services supplied by each:
22.2.1 complement each other; and
22.2.2 do not prevent the products and services supplied by others from
performing in the intended manner or from fulfilling their intended
function,
(within the limitations of the relevant
requirements for each product and service).
22.3
specification
and
contractual
The Supplier must comply with the service management processes (if any) set
out in this Agreement 4.”
PART 6 - SOFTWARE AND INTELLECTUAL PROPERTY
23.
INTELLECTUAL PROPERTY
Mutual Obligation
23.1
The Parties agree to perform their respective responsibilities under this
Agreement in a manner that does not constitute an infringement of any
Intellectual Property Rights or other proprietary rights of each other, or of any
third party.
Indemnity
23.2
4
The Supplier must keep the Customer indemnified against all costs, expenses
and liabilities whatsoever arising out of or in connection with any claim that the
performance of obligations under this Agreement by the Supplier infringes the
Intellectual Property Rights of any person.
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24.
VESTING
24.1
In respect of any work (as defined in the Copyright Act 1968) produced by the
Supplier in the course of and for the purposes of this Agreement (including
without limitation reports, records of Products and Services supplied to the
Customer, charges and invoices, procedure manuals, configuration details, and
performance data) subject only to exceptions set out in Schedule 29:
24.1.1 Intellectual Property Rights in the work and any embodiment of the
work automatically vests in the Customer; and
24.1.2 property in any separate physical
automatically vests in the Customer.
24.2
embodiment
of
the
work
This Agreement does not vest in the Customer:
24.2.1 Intellectual Property Rights in the Supplier’s methodologies or other
proprietary information in existence at or prior to the date of this
Agreement; or
24.2.2 copyright in existing publications or other work produced by or on
behalf of the Supplier prior to or otherwise than in the course of
providing the Products or Services.
24.3
25.
To the extent that such methodologies, information or work is incorporated in
work produced by the Supplier in the course of and for the purposes of this
Agreement, the Supplier confers on the Customer a perpetual, irrevocable, fee
free licence to use the methodologies, information or work to the extent required
for the full enjoyment and use of the work vested in the Customer.
SOFTWARE
The rights and obligations of the Parties with regard to software are as set out in
Schedule 28.
26.
The rights and obligations of the Parties with regard to Intellectual Property Rights are
as set out in Schedule 29.
PART 7 - PRICE, INVOICING AND PAYMENT
27.
PRICE
27.1
The Prices set out in or determined in accordance with Schedule 17 apply to the
provision of Products and Services, except to the extent otherwise provided in
this Agreement.
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Taxes
27.2
The Prices exclude GST, but include all other taxes, duties or government
charges imposed or levied in Australia or overseas in connection with this
Agreement.
Costs included in Prices
27.3
The Prices include all costs of compliance with the Supplier’s obligations under
this Agreement.
Price review
27.4
28.
If Prices are subject to review in accordance with Schedule 17, the Prices under
this Agreement will be varied in accordance with such a review from the date of
completion of the review.
GST COMPONENT PAYABLE
In addition to any amount payable by the Customer by reference to the Price (the
“base consideration”), the Customer must pay to the Supplier an additional amount
of consideration (“GST consideration”) calculated by multiplying the GST Rate by
the base consideration. The GST consideration is payable at the same time and
subject to the same conditions as the base consideration.
29.
INVOICING AND PAYMENT
29.1
The Supplier is entitled to invoice the Customer for payment:
29.1.1 in respect of a Product, only when the Product has been Accepted by
the Customer;
29.1.2 in respect of a Service, only on a monthly basis, when the Service has
been provided.
29.2
A Customer does not have to pay a Supplier’s invoice unless the invoice is
properly rendered. An invoice is properly rendered if it:
29.2.1 is issued in respect of Product or Service for which the Supplier is
entitled to invoice under this Agreement;
29.2.2 reflects the correct price for Product or Service under this Agreement;
29.2.3 is a valid tax invoice within the meaning of the GST law; and
29.2.4 complies with the requirements stipulated in Schedule 18.
29.3
If the Customer does not dispute the amount of a properly rendered invoice,
(“Undisputed Invoice”) the Customer must pay that amount within thirty (30)
days of receiving it.
29.4
If the Customer disputes the amount of an invoice:
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29.4.1 the Customer must notify the Supplier of the dispute, and of any
amount that is undisputed within thirty (30) days of receiving the
invoice;
29.4.2 the Supplier may issue an adjustment note and a further tax invoice for
the undisputed amount (if any) without prejudice to the Supplier’s claim
under the disputed invoice;
29.4.3 if the Supplier issues a tax invoice for the undisputed amount the
Customer must pay that amount within thirty (30) days of receipt of the
invoice; and
29.4.4 the Parties must seek to resolve the Dispute in accordance with the
Dispute Resolution Procedure.
29.5
The Party to whom an amount is properly payable and not paid will be entitled
to claim interest at the Prescribed Rate from the day the amount is due until the
day it is paid.
Recovery of under-payment or over-payment
29.6
If the Supplier invoice claims more payment than is properly due (whether by
reason of miscalculation or for any other reason) even though the Customer
pays the full amount and does not dispute it, the Customer is entitled at any
time to claim from the Supplier at its option a refund of the excess amount or to
have the excess amount set off against future payments.
29.7
If a Supplier invoice claims less payment than is properly due (whether by
reason of miscalculation or for any other reason) the Supplier is entitled at any
time to claim the balance properly due, either under a separate invoice or by
adding the amount to a subsequent invoice.
29.8
A claim by either Party under the preceding two sub-clauses must be supported
by sufficient detail of the incorrect invoice and the amount that should have
been invoiced to substantiate the claim.
PART 8 - CONFIDENTIALITY, PRIVACY
30.
CONFIDENTIALITY
30.1
“Confidential Information” means:
30.1.1 “Disclosed Confidential Information” meaning information that is
disclosed by a Party (“Discloser”) to the other Party (“Recipient”)
that is:
(a)
confidential by its nature or by the circumstances in which it is
disclosed; or
(b)
designated by the person who discloses it as confidential; or
(c)
is identified or marked in term connoting its confidentiality; and
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30.1.2 “Confidential Contract Conditions” meaning those terms of this
Agreement designated as confidential by the Parties in the
Memorandum,
but does not include information which is or becomes public
knowledge other than by a breach of this Agreement; or the contents
of this Agreement (other than those contents designated in the
Memorandum).
Confidential Contract Conditions
30.2
Subject to this Agreement, both Parties must keep the Confidential Contract
Conditions confidential.
Disclosed Confidential Information
30.3
The Recipient must keep the Disclosed Confidential Information confidential.
30.4
Subject to this Agreement, the Recipient must only use the Disclosed
Confidential Information for:
30.4.1 the purpose of performing its obligations under this Agreement, any
Purchasing Agreement or any Customer Agreement; and
30.4.2 any other purpose as the Discloser may permit by written notice to the
Recipient from time to time in respect of the Disclosed Confidential
Information.
30.5
The Recipient must, if required by the Discloser, deliver to the Discloser or
destroy any documents containing the Disclosed Confidential Information and
must for that purpose use all reasonable efforts to retrieve any document
containing Disclosed Confidential Information given to or made by an
Authorised Person.
Classified Disclosed Confidential Information
30.6
The Customer may stipulate as a condition of its disclosure of Disclosed
Confidential Information that the Recipient must implement specific additional
measures (“Classified Information Measures”) to protect the security of that
information, then subject only to any other agreement between the Parties, the
Recipient must implement the Classified Information Measures in respect of that
information.
Permitted Disclosure of Confidential Information
30.7
Subject to any Classified Information Measures, a Party may disclose the
Confidential Information in respect of which the Party has an obligation of
confidentiality under this Agreement in the following circumstances:
30.7.1 if the Party is a Customer, to the State;
30.7.2 with the prior written consent of the other Party;
30.7.3 to its employee, consultant, subcontractor or agent (an “Authorised
Person”), if:
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(a)
the Authorised Person needs to know the Confidential
Information for the performance of his or her duties to that Party
in relation to this Agreement; and
(b)
the Authorised Person is first made aware of the confidential
nature of the Confidential Information and the requirement that
the Authorised Person treat it confidentially; or
30.7.4 if and to the extent that it is legally compelled to disclose the
Confidential Information,
30.7.5 to a Court, legal advisor or any other party to legal proceedings, for the
purposes of it prosecuting or defending any legal proceedings to which
the Party is a litigant; or
30.7.6 if it is required to disclose the Confidential Information by the rules of
any relevant stock exchange, the Australian Competition and
Consumer Commission or the Australian Communications and Media
Authority.
Disclosure by State Agency of Confidential Information
30.8
Notwithstanding anything else in this Agreement, if the Customer is a State
Agency it may disclose Confidential Information:
30.8.1 to Parliament, the Governor, a Minister, Cabinet or a Parliamentary or
Cabinet committee or subcommittee of the State of South Australia;
30.8.2 to any agency, authority, instrumentality or officer of the State of South
Australia to whom it is customary for the State or Customer to disclose
the Confidential Information (whether or not it is legally obliged to do
so); or
30.8.3 to the Australian Competition and Consumer Commission (“ACCC”) if
the Customer reasonably suspects, or is notified by the ACCC that it
reasonably suspects, that there is Cartel Conduct or unlawful collusion
in connection with the supply of Deliverables under this Agreement. 5
Protection of Confidential Information
30.9
When a Party is aware of any steps being taken or considered to legally compel
that Party or an Authorised Person of that Party to disclose Confidential
Information, it must:
30.9.1 to the extent legally permitted, defer and limit the disclosure with a view
to preserving the confidentiality of the Confidential Information as much
as possible;
30.9.2 promptly notify the other Party; and
30.9.3 do anything reasonably required by the other Party, including the
institution and conduct of legal proceedings at the other Party’s
direction and expense, to oppose or restrict that disclosure.
5
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30.10 Each Party must do everything reasonably possible to preserve the
confidentiality of the Confidential Information.
30.11 A Party must notify the other Party promptly if it is aware of any disclosure of
the Confidential Information otherwise than as permitted by this Agreement or
with the authority of the other Party.
30.12 Nothing in this clause requires either Party to commit an unlawful act, or expose
itself to proceedings for contempt or other lawful penalties.
31.
INFORMATION PRIVACY
31.1
31.2
32.
The Supplier must comply with:
31.1.1
the requirements set out in Schedule 20 with respect to
Personal Information; and
31.1.2
all applicable laws relating to the protection of privacy.
The Supplier must not do anything on the Customer’s behalf, or use Personal
Information in any manner that would contribute to or constitute a contravention
of the Information Privacy Principles 6.
DATA
Acknowledgement
32.1
The Supplier acknowledges that:
32.1.1 by virtue of this Agreement it may be in possession of data belonging
to the Customer and third parties; (“Customer’s Data”) and
32.1.2 it is only the custodian of the Customer’s Data, and must deliver that
data to its owner on demand by that owner, regardless of any other
legal right or remedy that the Supplier may then have.
No Rights
6
32.2
Nothing in this Agreement has the effect of transferring ownership or any other
right over the Customer’s Data to the Supplier (including any data that is subject
to legal or other professional privilege).
32.3
If the Supplier receives a subpoena or any other demand from a court or other
adjudicative person or body or from any person having legal authority to
demand production of data or Customer’s Data, it must:
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18
32.3.1 promptly advise the Customer of receipt of the demand, and promptly
provide the owner with a copy of the demand (to the extent it has been
reduced to writing); and
32.3.2 seek and to the extent it can lawfully do so comply with the Customer’s
instructions as to the response to the demand (including, without
limitation, delaying compliance for as long as possible).
32.4
Nothing in this clause requires the Supplier to commit an unlawful act, or
expose itself to proceedings for contempt or other lawful penalties.
No lien
32.5
The Supplier must ensure that the Customers have access to their data in
accordance with this Agreement at all times, whether or not any dispute exists
between the Customers and the Supplier.
32.6
Specifically, and without limiting any of the Customer’s rights, the Supplier
acknowledges:
32.6.1 it does not and will not have any lien over the Customer’s Data or any
property of the Customer;
32.6.2 the Customers or any other person may seek immediate injunctive
relief to secure access to its data; and
32.6.3 the Supplier must not obstruct hinder or oppose any such application
for relief.
PART 9 - SECURITY
33.
CUSTOMER SECURITY REQUIREMENTS
33.1
The Supplier must comply with any reasonable site security requirements of the
Customer.
Application to State Agencies only
33.2
The following provisions of this clause apply only to the Customer if it is a State
Agency.
State security policies and practices
33.3
7
The Supplier acknowledges that the State and State Agencies have adopted
and must implement policies and practices for security of their information
assets. These are set out in the Information Security Management Framework
(“ISMF”).
The current version of the ISMF is available at
http://www.sa.gov.au/policy/ismf; 7
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19
33.4
The Supplier acknowledges that the ISMF is subject to development and
variation from time to time. The Supplier must confer, consult and cooperate in
dealing with any requirement of the Customer to implement the Customer’s
security policy and practices. To the extent that this necessitates a change to
the Products, software or Services provided or the Supplier’s obligations under
this Agreement then this will be subject to a Contract Variation Proposal.
Security standards
33.5
The Supplier must comply with any security policies, standards guidelines and
other requirements set out in Schedule 19.8
PART 10 - OTHER MATTERS
34.
35.
SUB-CONTRACTING
34.1
The Supplier must not, without prior written consent of the Customer, subcontract the whole or any part of its obligations under this Agreement to a SubContractor who is either not included in the schedule of Sub-Contractors preapproved by the State as set out in Schedule 32 or as otherwise approved by
the State. The Parties acknowledge that a contract of service entered into by
the Supplier with a natural person does not constitute a ‘sub-contract’ for the
purpose of the clause 34.1.9
34.2
The Supplier will not be relieved of any of its liabilities or obligations under this
Agreement by entering into a sub-contract and the Supplier will be liable for the
acts, defaults and neglects of any Sub-Contractor or any employee or agent of
the Sub-Contractor as fully as if they were the acts, defaults or neglects of the
Supplier or the employees or agents of the Supplier.
34.3
The Supplier must ensure the Sub-Contractor is suitably qualified and
accredited to carry out the obligations required pursuant to this Agreement.
DEFAULT AND RECTIFICATION
35.1
Either Party may give to the other a notice (“Default Notice”) requiring any
default under this Agreement to be rectified within a period of not less than
twenty (20) Business Days of the date of that notice (“Rectification Period”).
35.2
The Party receiving a Default Notice must:
35.2.1 rectify that default within the Rectification Period; or
35.2.2 immediately advise the other in writing that it does not acknowledge
that a default has occurred, and pursue the Dispute Resolution
Procedure.
8
9
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Demands for money
35.3
Either Party (“Claimant”) may give to the other a notice demanding the
payment of any money payable by the other Party to the Claimant and due but
unpaid (“Demand Notice”).
35.4
The Party receiving a Demand Notice must either:
35.4.1 if the money is acknowledged to be payable, pay it within ten (10)
Business Days; or
35.4.2 if liability to pay is disputed, promptly advise the other in writing that it
does not acknowledge that the money is payable, and pursue the
Dispute Resolution Procedure.
Escalation
35.5
36.
If the Customer is a State Agency, it is acknowledged that the Customer may
refer to the State the matter of a Default Notice or Demand Notice issued by the
Customer and not complied with by the Supplier.
REMEDIES
36.1
This clause does not exhaustively list remedies.
Service Debits
36.2
If the Supplier fails to perform the Services in accordance with the applicable
Service Levels specified in Schedule 5, the Customer is entitled to Service
Debits as set out in Schedule 16.
Resort to other Supplier
36.3
If the Supplier fails to provide a Product or Service to the Customer to the
standard required under the Customer Agreement or at all and:
36.3.1 a Default Notice has been given and the default has not been rectified
within twenty (20) Business Days of the Default Notice; or
36.3.2 (where the default cannot be rectified within that time) rectification has
commenced but has not proceeded to the Customer’s reasonable
satisfaction with all urgent speed; or
36.3.3 if the standard of performance of the Product or Service or lack of
performance of the Service by the Supplier is such that the Customer’s
financial position is significantly impacted; or
36.3.4 a threat to public health or safety emerges as a result of such failure;
then the Customer may engage another supplier to provide the
relevant Product and Service and, in that event, is not liable to pay to
the Supplier charges associated with that Product and Service.
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36.4
If the Customer engages another supplier to provide a Service pursuant to the
preceding sub-clause, the Supplier is liable to pay the Customer the reasonably
incurred extra costs associated with and resulting from the provision of Services
by that provider.
36.5
If a Customer procures Services from another supplier where the Supplier is in
default, the Supplier must promptly provide such information and assistance as
is necessary to enable that other supplier to provide Services effectively to the
Customer, subject to the execution by the other supplier of a confidentiality
agreement reasonably necessary to protect the Supplier’s Confidential
Information.
Making good default
36.6
If the Supplier fails to perform an obligation under this Agreement the Customer
may, without being obliged to, perform the obligation and claim the cost of so
doing from the Supplier.
Set-off
36.7
Either Party may set off against money due and payable by that Party to the
other Party any moneys which are due from the other Party that have not been
paid.
Remedies concurrent
36.8
37.
Each Party’s remedies under this Agreement are concurrent unless otherwise
specified.
INDEMNITY AGAINST THIRD PARTY CLAIMS
The Supplier must indemnify the Customer in respect of any claim or legal
proceedings against the Customer by a third party arising out of any wrongful act or
omission (including negligence) of the Supplier.
38.
INDEMNITY PROCEDURES
Notice of Claim
38.1
Promptly after receipt by a Party (“Indemnified Party”) of notice of the
commencement (or threatened commencement) of any civil, criminal,
administrative or investigative action or proceeding involving a claim for which it
will seek indemnification from the other Party (“Indemnifying Party”), the
Indemnified Party must notify the Indemnifying Party in writing that it is obligated
to provide such indemnification of such claim. No failure to so notify the
Indemnifying Party must relieve the Indemnifying Party of its obligations under
this Agreement except to the extent that it can demonstrate to the reasonable
satisfaction of the Indemnified Party damage attributable to such failure.
Control by Indemnifying Party
38.2
The Indemnifying Party is entitled to have sole control over the defence and
settlement of such claim but:
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38.2.1 the Indemnified Party must provide reasonable assistance to the
Indemnifying Party in respect of such claim and may participate in the
defence of such claim and employ (at its cost) its own counsel to assist
in the handling of that claim; and
38.2.2 the Indemnifying Party must obtain the prior written approval of the
Indemnified Party before entering into any settlement of such claim or
ceasing to defend against such claim if such settlement or cessation
would cause injunctive or other equitable relief to be imposed against
the Indemnified Party.
38.3
Any indemnity as to legal costs applies only until assumption of the defence of
the claim by the Indemnifying Party.
Reduced Contribution
38.4
39.
Each Party's indemnity obligations under this Agreement must be reduced
proportionately by the extent to which the Indemnified Party's act or omission
contributed to the claim.
AUDIT FOR NON STATE AGENCIES
39.1
This clause applies only if the Customer is a Non State Agency.
39.2
The Supplier must provide the Customer and any of its auditors and advisers
full access from time to time as required by the Customer to:
39.2.1 any premises (including any premises of the Supplier’s Subcontractors) at which or from which the Supplier (or the Supplier’s Subcontractor as the case may be) supplies the Services and Products;
and
39.2.2 all relevant equipment, software, systems, data, accounts, documents,
personnel, reports and records (whether prepared by the Supplier or
not) relating to the Services and Products,
in order to enable the Customer to audit the Supplier’s compliance with
this Agreement, as it relates to the Customer’s Customer Agreements.
39.3
Each Party must be responsible for its own costs associated with an audit under
the preceding sub-clause save that if an audit shows an error exceeding 5% or
ten thousand dollars ($10,000) (whichever is the less) whether in favour of the
Supplier or the Customer:
39.3.1 in any one invoice;
39.3.2 in relation to amounts charged to the Customer over a period of six
months;
then the Supplier must pay the Customer’s costs associated with the
audit (including auditor’s fees), in addition to refunding to the Customer
the amount of any errors in the Supplier’s favour together with interest
at the Prescribed Rate.
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PART 11 - DISPUTES
40.
DISPUTES
40.1
Except in a case of genuine urgency where a Party seeks immediate
interlocutory relief or an interim remedy, neither Party may take legal
proceedings in respect of any dispute in relation to this Agreement without first
attempting resolution in accordance with this clause.
40.2
In the event of a dispute, or an unresolved good faith negotiation matter, a Party
may issue to the other Party a written notice of dispute (“Dispute Notice”),
describing the issue in dispute and requiring that the process in this clause be
followed.
40.3
Each Party must record in sufficient detail the nature and scope of the dispute,
and the issues raised by it, in writing and submit the record to the other Party.
40.4
The Parties must meet and attempt to resolve the dispute in good faith as soon
as practicable.
40.5
Only if the Customer is a State Agency, the following applies.
40.6
If the Parties are unable to resolve the dispute within twenty (20) Business Days
of the Dispute Notice, then (unless they agree to an extension of that time),
each of them must prepare a written record of the attempts to settle the dispute
and refer that record:
40.6.1 in the case of the Customer, to the State’s Principal Contract
Administrator;
40.6.2 in the case of the Supplier, to the Supplier’s Principal Contract
Administrator,
within a further twenty (20) Business Days, to be dealt with according
to the terms of the Purchasing Agreement.
41.
DISPUTE RESOLUTION INVOLVING OTHER SUPPLIERS
41.1
The Products and Services supplied by the Supplier will probably interact in
some way with products or services supplied by another supplier to the
Customer. If a problem occurs, a situation may arise where there is difficulty
identifying whether the problem exists in the Supplier’s Product or Service, or in
the product or service of another supplier.
41.2
If the Customer requires it, the Supplier must engage in a multi supplier
discussion. A “multi supplier discussion” is a discussion between the Supplier
and the other supplier or suppliers, acting in good faith in an effort to:
41.2.1 determine the cause or causes of the problem, or
41.2.2 determine a course of action that will assist in identifying the cause or
causes of the problem, and
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41.2.3 determine a course of action to resolve the problem.
41.3
The Customer may at its discretion participate in or facilitate or observe the
discussion, or may choose to be absent.
PART 12 - TRANSITION
42.
TRANSITION IN
Schedule 21.
43.
TRANSITION OUT
On expiry or termination of this Agreement, each Party must undertake the
obligations, responsibilities and tasks allocated to it in Schedule 22.
PART 13 - OTHER
44.
APPLICABLE LAW
This Agreement is subject to the Laws applicable in the State of South Australia.
45.
46.
47.
LEGAL COMPLIANCE
45.1
The Supplier must comply with the requirements of all Laws.
45.2
The Supplier must hold and comply with all licences, authorities, approvals and
consents required for the lawful performance of its obligations under this
Agreement.
JURISDICTION OF COURTS
46.1
The courts of South Australia have exclusive jurisdiction to determine any
proceeding in relation to this Agreement.
46.2
Any proceeding brought in a Federal Court must be instituted in the Adelaide
Registry of that Federal Court.
ASSIGNMENT
47.1
Neither Party may assign the whole or part of this Agreement without the other
Party’s prior written consent, which may be granted or withheld at its unfettered
discretion.
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25
47.2
48.
49.
50.
Notwithstanding the preceding sub-clause, it is acknowledged that the rights
and liabilities of Ministers of the Crown may be transferred by operation of law
under the Administrative Arrangements Act 1994 (SA).
RELATIONSHIP BETWEEN THE PARTIES
48.1
Nothing in this Agreement constitutes any relationship of employer and
employee or partnership between the Parties.
48.2
Neither Party has any authority to bind the other Party in any manner without
the prior consent of the other Party.
48.3
The Customer has no obligations to the Supplier’s personnel.
48.4
The Supplier must pay all remuneration claims and other entitlements payable
to the Supplier’s personnel.
48.5
The Supplier is responsible for complying with the requirements of the Income
Tax Assessment Act 1997 (Commonwealth), in respect of the Supplier’s
employees and the Customer is not required to make PAYG deductions from
the Price.
WAIVER
49.1
The failure of either Party to enforce this Agreement will in no way be
interpreted as a waiver of its rights under this Agreement.
49.2
Waiver by a Party of its rights under this Agreement is effective only if it is given
expressly in writing signed by that Party, and only to the extent expressed in
writing.
READING DOWN AND SEVERANCE
In the event that any provision or portion of any provision of this Agreement is held to
be unenforceable or invalid by a Court of competent jurisdiction the validity and
enforceability of the remaining provisions or portions of such provisions of this
Agreement shall not be adversely affected. The offending provision or part of a
provision shall be read down to the extent necessary to give it legal effect, or shall be
severed if it cannot be read down, and the remaining part and provisions of this
Agreement shall remain in full force and effect.
51.
NOTICES
51.1
A notice or other communication is properly given or served if the Party delivers
it by hand, posts it or transmits it by electronic mail or facsimile, to the address
of the Customer Agreement Administrator, marked to his or her attention.
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26
Change of address
51.2
Each Party must advise the other of any change in the address or the identity of
the Customer Agreement Administrator.
Receipt of communications
51.3
A notice or other communication is taken to be received if:
51.3.1 sent by post, at the time it would have been delivered in the ordinary
course of the post to the address to which it was sent;
51.3.2 sent by facsimile, electronic mail or other electronic means, only in the
event that the other Party acknowledges receipt by any means; or
51.3.3 delivered by hand, the Party who sent the notice holds a receipt for the
notice signed by a person employed at the physical address for
service.
52.
FORCE MAJEURE
52.1
For the purpose of this clause Force Majeure means the prevention of a party
(“non-performing Party”) complying with its obligations under this Agreement
by any:
52.1.1 events or circumstances which makes performance by the Supplier of
any of its obligations under this Agreement unlawful;
52.1.2 fire, flood, earthquake, terrorism, war, riot, civil disorder, rebellion or
revolution; or
52.1.3 other event or state of affairs which is outside of the control of the nonperforming Party or which would be an event of frustration at law
if and to the extent that:
52.1.4 the non-performing Party is without fault in causing or contributing to
that default or delay; and
52.1.5 the default or delay could not have been prevented or circumvented by
the non-performing Party taking reasonable precautions or actions.
52.2
The Parties agree that this does not include the prevention of a Party complying
with its obligations under this Agreement by any strikes by employees of a Party
or any sub-contractor of a Party (or both) unless the strike is part of an industry
wide campaign that does not arise out of a dispute between that Party or a
Party’s sub-contractor and one or more of its employees.
52.3
Neither Party will be liable for any default or delay in the performance of its
obligations under this Agreement if and to the extent that the default or delay is
caused by a Force Majeure.
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52.4
Upon the occurrence of a Force Majeure the non-performing Party must
promptly notify the other Party’s Principal Contract Administrator by telephone
(and must confirm promptly in writing) and describe in reasonable detail:
52.4.1 the circumstances of the Force Majeure; and
52.4.2 the efforts which the non-performing Party proposes to use to
recommence performance of its obligations.
52.5
In the event of a Force Majeure the non-performing Party will be excused from
any further performance of the obligations under this Agreement affected by the
Force Majeure for so long as:
52.5.1 the Force Majeure prevails; and
52.5.2 the non-performing Party continues to use its best efforts to
recommence performance whenever and to whatever extent possible
without delay.
52.6
Products or Services by the Supplier for more than forty eight (48) consecutive
hours then the State may, at its option, direct the Supplier to procure those
Products or Services so affected from a third party, in which case the Supplier
will be liable for payment for the provision of those Products or Services by the
third party for as long as the delay in performance continues.
52.7
Products or Services by the Supplier for more than seven (7) consecutive days
then the State may, at its option and at its cost, procure such or Services so
affected from an alternative supplier.
52.8
If the Force Majeure substantially prevent, hinders or delays the supply of any
Products or Services by the Supplier for more than thirty (30) consecutive days,
then the State may terminate this Agreement (or withdraw the affected Products
or Services from the scope of this Agreement) without liability to the Supplier as
of a date specified by the State in a written notice of termination to the Supplier.
52.9
The Parties acknowledge that:
52.9.1 defaults or delays in performance by the Supplier that are caused or
contributed to by the acts or omissions of the Supplier’s Subcontractors will not relieve the Supplier of its obligations under this
Agreement except to the extent that a Sub-contractor is itself subject to
a Force Majeure and the Supplier cannot reasonably circumvent the
effect of the Sub-contractor’s default or delay in performance through
the use of alternate sub-contractors, workaround plans or other
reasonable means; and
52.9.2 defaults or delays in performance by the State that are caused or
contributed to by the acts or omissions of another supplier of the State
will not relieve the State of its obligations under this Agreement except
to the extent that the other supplier is itself subject to a Force Majeure
and the State cannot reasonably circumvent the effect of the other
supplier default or delay in performance through the use of alternate
suppliers, workaround plans or other reasonable means.
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53.
10
FAILURE
53.1
The Supplier must establish arrangements for the
management and co-ordination of Significant ICT
Incidents and ICT Failures in accordance with
Schedule 30.
53.2
If a Significant ICT Incident or ICT Failure occurs,
the Supplier must carry out the management and
co-ordination of that Significant ICT Incident or ICT
Failure in accordance with the tasks and functions
allocated to the Supplier in Schedule 30 10
Page 1
SCHEDULE 4
FORM OF CUSTOMER AGREEMENT MEMORANDUM
Page 2
CUSTOMER CONTRACT MEMORANDUM
1.
PARTIES
This is a Customer Agreement (“Customer Agreement”) made on the date
specified in Item 1 of the Table of Particulars (“the Table”) made between the
Supplier as supplier on the one hand and the Eligible Entity as Customer on the other
hand (specified in Items 2 and 3 of the Table respectively) under the terms of the
Purchasing Agreement made between the Minister for Infrastructure on behalf of the
Crown in right of the State of South Australia and the Supplier dated <insert date of
Purchasing Agreement>.
2.
PRODUCTS AND SERVICES
This Customer Agreement is an agreement between the Supplier and the Customer
for the provision by the Supplier to the Customer of the Products or Services (or both)
specified in Item 4 of the Table.
3.
PRICE
The Prices for the Products or Services are determined in accordance with Schedule
17 of the Purchasing Agreement and more particularly set out in Item 5 of the Table.
4.
TERM
This Customer Agreement commences on the date specified in Item 1 of the Table
and expires upon expiry or termination of the Purchasing Agreement, unless this
Customer Agreement is terminated earlier in accordance with the provisions of this
Customer Agreement.
5.
CONTRACT ADMINISTRATORS
The Customer Agreement Administrators are specified in Item 6 of the Table.
6.
CONTRACT CONDITIONS
6.1
This Customer Agreement is subject to the terms and conditions set out in
Schedule 3 to the Purchasing Agreement and the special conditions set out in
Item 7 of the Table (“Special Conditions”).
6.2
However, the Special Conditions do not prevail to the extent that they are
inconsistent with:
6.2.1
the terms and conditions set out in the Purchasing Agreement; or
6.2.2
the terms and conditions set out in the Head Agreement,
unless the prior written approval of the State’s Principal Contract
Administrator has been obtained pursuant to clause 21.5 of the Purchasing
Agreement.
7.
The Parties to this Customer Agreement designate that the provisions of this
Customer Agreement as set out in Item 8 of the Table as confidential.
SCHEDULE 5
SCOPE, SPECIFICATIONS AND SERVICE LEVELS
TABLE OF CONTENTS
PART 1 - SCOPE OF DELIVERABLES...................................................................... 1
1.
2.
OVERVIEW ..................................................................................................... 1
SCOPE ............................................................................................................ 1
PART 2 – PRODUCTS AND ASSOCIATED SERVICES............................................ 1
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
PRODUCT LIST............................................................................................... 1
STANDARDS ................................................................................................... 2
COMPLIANCE WITH SPECIFICATIONS ........................................................ 2
SOFTWARE PRELOAD .................................................................................. 2
SECURITY FOR WARRANTY OBLIGATIONS ............................................... 2
WARRANTY OBLIGATIONS ........................................................................... 2
PRE-SALES SERVICES.................................................................................. 3
PRODUCT DELIVERY .................................................................................... 4
MAXIMUM DELIVERY TIMES ......................................................................... 4
ACCEPTANCE TESTING ................................................................................ 5
ASSOCIATED SERVICES............................................................................... 5
REMOVAL AND DISPOSAL OF PRODUCTS ................................................. 6
SERVICE LEVELS (PRODUCTS) ................................................................... 6
PART 3 – PABX MAINTENANCE AND SUPPORT SERVICES ................................ 8
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
GENERAL SUPPLIER OBLIGATIONS ............................................................ 8
SCOPE OF SERVICES ................................................................................... 8
QUALIFIED PERSONNEL ............................................................................... 8
SUPPLIER SERVICE DESK SERVICES......................................................... 9
VOICE NETWORK MANAGEMENT SERVICES ........................................... 10
CONFIGURATION MANAGEMENT SERVICE ............................................. 15
CHANGE MANAGEMENT SERVICE ............................................................ 15
RELEASE MANAGEMENT SERVICE ........................................................... 15
SECURITY SERVICES.................................................................................. 15
ALARM MONITORING .................................................................................. 16
REMOTE DIAGNOSTIC ACCESS................................................................. 16
PREVENTATIVE MAINTENANCE................................................................. 16
MANAGEMENT OF SPARE PARTS ............................................................. 17
WORK OUTSIDE OF DUTY TIMES .............................................................. 17
SERVICE RESTRICTIONS ........................................................................... 17
THIRD PARTY SUPPORT............................................................................. 18
OPTIONAL SERVICES.................................................................................. 18
SERVICE LEVEL MANAGEMENT ................................................................ 19
BUSINESS CONTINUITY SERVICES ........................................................... 19
ACROSS GOVERNMENT SERVICES .......................................................... 19
SERVICE LEVELS (SERVICES) ................................................................... 19
SERVICE LEVELS (GENERAL) .................................................................... 21
38. OTHER CONDITIONS ................................................................................... 22
PART 4 – DEFINITIONS ........................................................................................... 23
39. DEFINITIONS ................................................................................................ 23
Page 1
PART 1 - SCOPE OF DELIVERABLES
1.
2.
OVERVIEW
1.1
The State has appointed the Supplier for the provision of Products together with
associated maintenance and support Services specified in this Schedule 5.
1.2
The Supplier may offer to provide Products and Services
“Deliverables”] within the scope of this Agreement to Customers.
1.3
The Supplier's obligation to provide the Deliverables in a particular case will arise on
the issue of a Customer Order or otherwise as specified in a Customer Agreement.
[collectively
SCOPE
2.1
The Deliverables within the scope of this Agreement are as follows:
2.1.1
The Products and Services set out in Part 2 of this Schedule 5; and
2.1.2
The Services set out in Part 3 of this Schedule 5.
2.2
The Supplier must provide a Customer with the Deliverables it agrees to provide in a
Customer Agreement and Customer Orders with that Customer in accordance with
that Customer Agreement.
2.3
A Customer Agreement may specify the Customer’s requirements for Deliverables
in terms of Product items, Service requirements, technical standards, Service Levels
or any other matter.
2.4
Unless otherwise agreed in a Customer Agreement, the Supplier must provide
Deliverables to a Customer in accordance with the Service Levels set out in Clauses
15 and 36 of this Schedule 5.
PART 2 – PRODUCTS AND ASSOCIATED SERVICES
3.
PRODUCT LIST
3.1
The Products appearing in the Supplier’s Product List are in scope of this
Agreement.
3.2
The Supplier must prepare and provide to the State the Supplier’s Product List
comprising a list of Products including their respective recommended retail price.
3.3
The Supplier must supply the Products and Services to Customers requested in
Customer Orders.
3.4
At any time during the Term, the State may direct the Supplier to stop supplying
certain Products listed in the Supplier’s Product List. Upon direction by the State,
the Supplier must immediately cease to supply such Products to Customers until the
State otherwise directs.
3.5
The requirement specified in clause 3.4 of this Schedule 5 does not affect Customer
Orders placed with the Supplier before issue of the direction by the State, unless
otherwise specified.
4.
Page 2
STANDARDS
The Supplier must ensure that the Products comply with the latest version of all applicable
Australian standards unless otherwise agreed between the Supplier and a Customer.
5.
6.
7.
8.
COMPLIANCE WITH SPECIFICATIONS
5.1
The Supplier must, on request by a Customer, provide the Customer with the
Specifications for a Product.
5.2
The Supplier must ensure that the Products perform the functions and in all respects
comply with the applicable Specifications for that Product.
SOFTWARE PRELOAD
6.1
The Supplier must load software onto a Product prior to Delivery to the Delivery
Point in accordance with the Specifications, unless otherwise agreed through a
Customer Order.
6.2
The Supplier must test the software on the Product to ensure its proper operation.
6.3
The Supplier must provide the Customer with written evidence from the software
licensor of the Customer’s right to use all of the software provided by the Supplier
with the Product (including any licence keys and media).
SECURITY FOR WARRANTY OBLIGATIONS
7.1
Where a Customer purchases Products from the Supplier and the value of such
purchase could expose the Customer to a significant financial risk in the event that
the Supplier was unable to fulfil its Warranty Obligations as set out in this Schedule
5, the Customer may request, and the Supplier must agree, to provide the Customer
with an unconditional financial undertaking to cover the Customer’s exposure during
the Warranty Period.
7.2
In the event that a Customer requests the Supplier to provide it with an
unconditional financial undertaking as contemplated by clause 7.1 above, the
Parties must negotiate in good faith as to the amount of the unconditional financial
undertaking.
WARRANTY OBLIGATIONS
The following provisions apply in addition to any other provision of this Agreement.
8.1
There must be no additional cost to the Customer associated with the Supplier
fulfilling these Warranty Obligations.
8.2
The Warranty Period is one (1) year from the Acceptance Date.
8.3
The Warranty Obligations must cover all hardware components (including third-party
components installed at the time of purchase or subsequently by the Supplier) and
software comprising the Product without exclusion or limitation.
8.4
The Supplier’s obligation to remedy Defects in Products is conditional upon the
Customer returning the Defective Product to the Supplier.
9.
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8.5
The Supplier must remedy any Defects in the Products either by repair or
replacement during the Warranty Period in accordance with the requirements of this
clause 8.
8.6
The Supplier must supply Substitute Products to the Customer if, within thirty (30)
days of the Acceptance Date in accordance with this Agreement, a Defect occurs,
provided that the Customer (acting reasonably) considers replacement is the most
logical solution in minimising Customer downtime.
8.7
The Supplier must, at the request of the Customer, supply Substitute Products to the
Customer if during any six (6) month period there have been three (3) similar or
related Defects with a particular Product during the Warranty Period.
8.8
In respect to Substitute Products, the Warranty Period will commence from the date
of Acceptance of the Substitute Product.
8.9
Where the Supplier becomes aware of a potential Defect or Defects in a Product it
has supplied to Customers under this Agreement, the Supplier must perform
preventative maintenance to remedy or avoid the potential Defect or Defects
occurring, including if necessary, the replacement of components as soon as
reasonably practicable.
8.10
These Warranty Obligations must not be rendered inoperative by virtue of the fact
that trained employees of the Customer, or trained employees of a third party
service provider to the Customer, carry out work in respect of the Products except
where such work results directly in damage to the Products. In that case the
Supplier may charge for the cost of parts and labour necessary to repair the
Products and these Warranty Obligations must then be reinstated.
8.11
The Supplier is responsible for all costs including Spare Parts, transportation and
materials required to rectify Defects in the Products or the supply of a Substitute
Product as part of these Warranty Obligations.
8.12
The Customer will bear the cost of repair to the Product where a Defect in the
Product arises as a result of accidental or deliberate breakage by the Customer.
8.13
The Supplier must perform Acceptance Testing for all Product repairs undertaken at
no cost to the Customer. Acceptance Testing to repaired Products must
demonstrate to the satisfaction of the Customer that the Product has been
satisfactorily repaired and operates in accordance with the applicable Specifications.
PRE-SALES SERVICES
9.1
Customers may require ad hoc technical advice regarding the most appropriate
Product solutions to meet their business needs. The Supplier must make available
appropriate personnel to provide technical advice to Customers as and when
required during Business Hours at no cost to the Customer.
9.2
The Supplier must respond to Customer’s reasonable request for advice as
contemplated by clause 9.1 within five (5) Business Days.
9.3
The Supplier agrees to allow access to its ‘knowledge bases’, technical information
bulletins and white papers by nominated Customer representatives.
10.
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PRODUCT DELIVERY
10.1
The Supplier must package and Deliver the Products in such a way that any
damage likely to occur in transit is minimised. The Customer is not responsible for
any costs arising out of damage that occurs during Delivery.
10.2
The Supplier must arrange Delivery of the Products to the Delivery Point during the
Customer’s normal working hours unless otherwise agreed.
10.3
The Supplier must contact the Customer at least one (1) Business Day prior to
Delivery so that the Customer can accept Delivery of the Product.
10.4
Where a Product is unavailable, the Supplier must offer (at no additional cost) a
Substitute Product.
10.5
The Supplier must, if reasonably possible, Deliver the Products to a Delivery Point
nominated by a Customer within the Target Delivery Time.
10.6
The Supplier must Deliver the Products to a Delivery Point nominated by a
Customer within the Maximum Delivery Time.
10.7
Where an Agreed Delivery Date is settled between the Customer and the Supplier,
the time from when the Customer places a Customer Order until the Agreed
Delivery Date will be both the Target Delivery Time and Maximum Delivery Time.
10.8
Customer Orders identified by the Customer as urgent must be delivered to the
Customer at the earliest practicable time, and at least within five (5) Business Days,
and the Supplier must use reasonable endeavours to enable this requirement to be
met.
10.9
Subject to clause 10.10 and for avoidance of doubt, there is not an additional price
payable by the Customer for Delivery of a Product.
10.10 The Supplier may charge a Customer for any reasonable courier costs incurred by
the Supplier in the Delivery of a Product to a regional area, provided that, prior to
such Delivery, the Supplier:
10.10.1 notifies the Customer that it intends to exercise its right under this sub-clause
10.10; and
10.10.2 provides the Customer with a quote for the cost of Delivery.
11.
MAXIMUM DELIVERY TIMES
11.1
The Supplier must Deliver Products to:
11.1.1 Delivery Points located in the Greater Adelaide Metropolitan Area within ten
(10) Business Days from the time the Supplier receives a Customer Order in
accordance with terms of the relevant Customer Agreement; or
11.1.2 Delivery Points located outside of the Greater Adelaide Metropolitan Area
within twelve (12) Business Days from the time the Supplier receives a
Customer Order in accordance with terms of the relevant Customer
Agreement,
(each respectively “Maximum Delivery Time”).
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11.2
The Maximum Delivery Time will apply irrespective of the quantity of Products
ordered by a Customer.
11.3
Nothing in clause 11.1 or 11.2 precludes a Customer and a Supplier from setting an
alternative date for Delivery (i.e. an Agreed Delivery Date). For the sake of clarity,
the Agreed Delivery Date may be set between a Customer and the Supplier at the
time that the Supplier provides a quotation to a Customer.
11.4
Notwithstanding clauses 11.1 to 11.3 inclusive, where a Customer issues a
Customer Order for a Product that the Supplier does not have in stock in its
warehouse facilities in Australia, then the Supplier must:
11.4.1 within one (1) Business Day of receipt of such a Customer Order provide
written notice to the Customer that the Product is not available; and
11.4.2 provide the Customer with an indicative timeframe for Delivery of that Product.
11.5
12.
13.
The Delivery time for a Product provided pursuant to clause 11.4 will not commence
until such Product is in the Supplier’s warehouse facilities in Australia.
ACCEPTANCE TESTING
12.1
The Customer may require that the Supplier perform Acceptance Testing in respect
of a Product. Where the Customer elects Acceptance Testing then that Acceptance
Testing shall be conducted at no additional cost to the Customer.
12.2
If requested by a Customer, Acceptance Testing shall include the development of a
‘test point plan’ to the satisfaction of the Customer.
12.3
For the purpose of clause 12.1 of this Schedule 5, Acceptance Testing must
demonstrate to the satisfaction of the Customer that the Product performs the
functions and in all respects complies with, the applicable Specifications for that
Product and complies with any standards applicable to that Product.
12.4
The Customer may also choose to perform the Acceptance Testing as set out in
clause 12 of this Schedule 5.
ASSOCIATED SERVICES
Installation and configuration
13.1
If requested by a Customer, the Supplier shall quote a price to install and configure
a Product based on the Customer’s requirements.
13.2
If requested by a Customer and subject to agreement on price pursuant to the
clause 13.1 of this Schedule 5, the Supplier must install and configure a Product into
a Customer’s environment in accordance with the Customer’s instructions and
includes:
13.2.1 unpacking the Product;
13.2.2 installing the Product at the location specified in the Customer Order at the time
agreed between the Supplier and the Customer in writing under the supervision
of the Customer’s nominated representative;
13.2.3 Acceptance Testing of the Product to ensure it is fully operational in
accordance with the Customer’s requirements, including the performance of a
power up test;
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13.2.4 set up the Product, including attachment of all input and output devices;
13.2.5 configure the Product including all features that are required for optimal
performance of the system;
13.2.6 any cabling alterations or additions required;
13.2.7 the updating of onsite distribution frame records to reflect any alteration or
addition to existing cabling;
13.2.8 the provision of ‘as built’ documentation including diagrams (both in hard and
soft copy); and
13.2.9 the removal of packaging.
13.3
Where a Customer places a single Customer Order for a number of Products
requiring installation and configuration (possibly at different Sites) then the price
quoted by the Supplier to install and configure the Products based on the
Customer’s requirements shall be inclusive of the Supplier’s management and
administration costs and any overheads in performing the Services.
Asset Management
13.4
The Supplier must provide asset information regarding any Products supplied, in a
format and comprising the information as specified by a Customer.
Warehousing
13.5
If required by the Customer, the Supplier must temporarily warehouse Products the
subject of a Customer Order at appropriate warehousing facilities for staged
Delivery. Risk of damage or loss in respect of the Product remains with the Supplier
until the Acceptance Date.
Training
13.6
If required by a Customer, the Supplier must provide training to the Customer’s
nominated representatives in connection with:
13.6.1 proper care and handling of the Products;
13.6.2 basic operation of the Products; and
13.6.3 familiarisation with the Products and their functionality.
14.
REMOVAL AND DISPOSAL OF PRODUCTS
14.1
If requested by a Customer, the Supplier must, at no additional cost, remove and
dispose of any item no longer required as a consequence of the purchase of a
Product, in accordance with the Customer’s instructions. This removal, disposal and
recycling service may include:
14.1.1 deletion of State’s Data stored on the item; and
14.1.2 removal of any packaging associated with the item.
15.
SERVICE LEVELS (PRODUCTS)
15.1
Unless otherwise agreed in a Customer Agreement, the Supplier must provide the
Deliverables that meet the appropriate Service Levels specified in this Clause 15.
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PART 3 – PABX MAINTENANCE AND SUPPORT SERVICES
16.
GENERAL SUPPLIER OBLIGATIONS
16.1
The Supplier must:
16.1.1 use the Qualified Personnel to perform the Services;
16.1.2 provide all necessary Support Facilities; and
16.1.3 ensure the Services are performed in accordance with the Service Levels set
out in this Schedule 5 or as otherwise agreed between a Customer and the
Supplier in a Customer Agreement or Customer Order.
16.2
17.
Unless otherwise agreed in a Customer Agreement, the Supplier is not obliged to
provide Services or meet the Service Levels set out in in this Schedule 5 in relation
to Equipment that has reached both End-of-Life and End-of-Support 1.
SCOPE OF SERVICES
17.1
The Services under this Part 3 include:
17.1.1 Supplier Service Desk Services;
17.1.2 Voice Network Management Services;
17.1.3 Configuration Management Services;
17.1.4 Change Management Services;
17.1.5 Release Management Services;
17.1.6 Security Services; and
17.1.7 Optional Services.
18.
QUALIFIED PERSONNEL
18.1
The Qualified Personnel must be available to perform (and must perform) the
Services at all times during the Duty Times and at such other times as may be
required by the Customer in accordance with this Part 3 and any Customer
Agreement or Customer Order.
18.2
If required by a Customer, the Supplier must provide the required number of
Qualified Personnel to exclusively dedicate themselves to performing the Services in
accordance with this Part 3 [“Dedicated Personnel”].
18.3
The Dedicated Personnel must:
18.3.1 be directly employed by the Supplier unless the Supplier has obtained prior
written approval of the Customer’s Contract Administrator; and
1
Amended by Variation No.4# DATED 15/2/2016 (Knet:9924758)
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18.3.2 be located, during the Duty Times, at the location specified in a Customer
Agreement and to undertake the appropriate induction procedures required by
the Customer for this location.
18.4
Qualified Personnel must possess the following qualifications and maintenance and
support skills:
18.4.1 an appropriate and current Australian Communication Authority licence;
18.4.2 PABX programming, including without limitation the ability to maintain route,
trunk and extension data;
18.4.3 ‘Least Cost Routing’ (“LCR”) programming for all Supplier branded
environments and system models; and
18.4.4 formal qualifications, unless otherwise agreed with a Customer, in the
maintenance and support of all of the Supplier’s branded PABX models.
18.5
Where Qualified Personnel are required to provide support and maintenance to
Equipment associated with “CCIS Number 7” environments, “NEC Fusion”, “Active
Voice UM8500”, “NEC IPS”, “SV8500”, “IPX”, TSA CAAB”, “HP switch layer three”,
“Juniper Layer 3” switch and firewall and “Qmaster version 5” environments and
supporting data networking infrastructure, and any ‘Call Centre’ software, then those
Qualified Personnel must hold additional formal qualifications to maintain and
support these environments and products.
18.6
The Supplier agrees that, Outside of Duty Times:
18.6.1 at least one Qualified Personnel (and where applicable Dedicated Personnel)
must be available to perform the Services if required by a Customer on an “on
call” basis; and
18.6.2 if for any reason the Qualified Personnel (or Dedicated Personnel that are
assigned to be “on call” are unavailable, then the Supplier must arrange for
other Qualified Personnel to be “on call” as an alternate point of contact.
19.
SUPPLIER SERVICE DESK SERVICES
19.1
The Supplier must establish and maintain during the Term a Service Desk that
Customers (or their nominated service providers) can contact via telephone, e-mail
or other electronic means 24 hours a day, 7 days a week to:
19.1.1 act as a single point of contact to receive all Service Requests and Requests
for Change;
19.1.2 record all details that a Customer provides in relation to each Service Request
and Request for Change;
19.1.3 log, track and manage each Service Request and Request for Change lodged
or notified;
19.1.4 provide a Customer with information in relation to all Service Requests and
Requests for Change that are lodged, or that affect it;
19.1.5 receive advice of Incidents and prepare Incident Reports and initiate Incident
and Problem Management Processes;
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19.1.6 advise a Customer (or where appropriate, its nominated service provider) of the
Severity Level assigned by the Supplier to an Incident;
19.1.7 advise a Customer (or where appropriate, its nominated service provider) of
any Incident separately detected by the Supplier;
19.1.8 provide electronic (i.e. “online”) access to Incident, Request for Change and
Service Request logs (but only where the Supplier’s business systems have the
capability of doing so); and
19.1.9 conduct any other functions assigned to it under this Schedule 5.
20.
19.2
The Supplier’s Service Desk must be conducted during Business Hours from a
location situated within the Greater Adelaide Metropolitan Area but may be
conducted from an alternate location for times outside of Business Hours.
19.3
The Supplier’s Service Desk must take all reasonable steps to resolve, by telephone
in the first instance, Product Defects and Incidents identified by a Customer.
19.4
If an Incident cannot be resolved over the telephone, then the Supplier must initiate
Incident and Problem Management Processes and advise the Customer
accordingly.
19.5
In all cases, the Supplier must log each Request for Change, Service Request and
Incident within one (1) Business Hour of receiving the communication, unless the
Incident is otherwise resolved.
19.6
The Supplier must provide a mechanism, such as a website, to enable Customers to
submit Service Requests and Incident Reports electronically.
VOICE NETWORK MANAGEMENT SERVICES
20.1
The Voice Network Management Services comprise all services described in this
clause 20 of Schedule 5.
20.2
The Supplier must, subject to the Service Restrictions described in clause 30 of this
Schedule 5, perform the following services:
20.2.1 Incident and Problem Management following the Incident and Problem
Management Resolution Process;
20.2.2 Alarm Monitoring;
20.2.3 Remote Diagnostic Access;
20.2.4 Preventative Maintenance;
20.2.5 manage Spare Parts, as described in clause 28 of this Schedule 5;
20.2.6 monitoring the Voice Network (including “TDM” and the “IP Cloud”);
20.2.7 patching or upgrading of software or firmware used by or on the Equipment
subject to authorisation by a Customer;
20.2.8 provision of advice to a Customer on operational issues in relation to a Voice
Network;
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20.2.9 on request by a Customer, the provision of other services incidental to the
Services, or to improve a Voice Network performance, to be performed by
Dedicated Personnel, such services to be provided only if:
(a)
the provision of these services does not prevent or hinder the
Supplier from complying with the Service Levels in this Agreement;
and
(b)
the service to be provided is within the skill sets of the Dedicated
Personnel under clauses 18.4 and 18.5 of this Schedule 5; and
20.2.10 undertake work outside of Duty Times as described in clause 29 of this
Schedule 5.
20.3
Incident and Problem Management
20.3.1 The Supplier must manage Incidents and Problems in accordance with the
Incident and Problem Management Process described in clause 20.10 of this
Schedule 5 or as otherwise agreed in a Customer Agreement. This
requirement includes, without limitation:
20.4
(a)
ascertain Incidents and create Incident Reports;
(b)
allocate Incidents to relevant Qualified Personnel;
(c)
track resolution progress of each Incident;
(d)
resolve Incidents as soon as possible but always within the Maximum
Resolution Time;
(e)
escalate Incidents in accordance with the Incident and Problem
Management Process;
(f)
collaboration with any relevant Third Party Support to resolve
Incidents;
(g)
undertake any required repairs in accordance with clause 20.4 this
Schedule, or taking any other appropriate action to resolve Incidents;
(h)
issuing any required notification of resolution of the Incident; and
(i)
follow up of any further issues of the Customer who initiated the
Incident Report.
Repairs
20.4.1 In the event of an Incident, the Supplier must make such repairs and
adjustments to, and replace such parts of the Equipment as may be necessary
to restore the Equipment to its proper operating condition, including
replacement and repairs under the manufacturer’s warranty. Where
appropriate, the Supplier must consult with and make recommendations to a
Customer to maintain business continuity.
20.4.2 Where the Supplier is not the manufacturer of the Equipment then the Supplier
must interact with the Equipment manufacturer for the replacement and repairs
under any current warranty and for the provision of information to ensure the
manufacturer’s Equipment records are updated.
20.5
Cabling Plant
20.5.1 If an Incident occurs as a result of inadequate or damaged building or
‘backbone’ cabling, the Supplier must endeavour to rectify the Incident by any
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means possible other than replacing the existing cable plant. If expansion or
replacement of the cable plant is required then this must be logged and
referred to the Customer.
20.6
Handsets
20.6.1 The Equipment includes System Integral Handsets2 and excludes all other
handsets for the purpose of this Agreement.
20.6.2 If an Incident occurs due to inadequate operation of an analogue handset, the
Supplier must:
20.7
(a)
in the case of an analogue handset owned by a Customer, replace
that handset with a new or refurbished handset supplied by a
Customer for that purpose; or
(b)
in the case of any other terminal device (e.g. facsimile or modem)
being faulty, advise a Customer of the need for a Customer to replace
or repair such a terminal device.
Expert Advice
20.7.1 The Supplier must provide technical and expert Factory/Specialist Support for
the Equipment when an Incident is escalated to such personnel pursuant to the
Incident and Problem Resolution Process. If an Incident is escalated to
Factory/Specialist Support, the Qualified Personnel (including Dedicated
Personnel if any) must:
20.8
(a)
notify the Duty Officer of the escalation;
(b)
remain informed of the progress of resolution of the Incident ; and
(c)
inform a Customer of the progress of resolution of the Incident
through the “Engineering Incident Reports” in accordance with
Schedule 7.
Practical Work Around
20.8.1 If the Supplier is unable to resolve an Incident within the applicable Resolution
Time, a Practical Work Around solution may be used. This may include the
installation of either loan or replacement Equipment if agreed with a Customer.
20.9
Agreed Customer Delay
20.9.1 The Supplier may send a written notice to a Customer requesting that the
Customer agree to delay resolution of an Incident. This notice must identify the
Incident, specify any reason for the required delay and the extension of
Resolution Time required.
20.9.2 The Customer may, in its complete discretion, agree to the delay in resolving
the Incident and any extension of the Resolution Time [“Agreed Customer
Delay”].
20.9.3 If an Agreed Customer Delay is formed then the:
(a)
2
Incident will retain its allocated Priority; and
Amended by Variation No.4# (DATED) 9924758
(b)
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Resolution Time will be extended as agreed in the Agreed Customer
Delay.
20.10 Incident and Problem Management Process
20.10.1 The Incident and Problem Management Process is set out in this clause
20.10.
20.10.2 When the Supplier becomes aware of an Incident, it must create an Incident
Report.
20.10.3 Each Incident must be assigned a Priority. A Customer may, at its sole
discretion, assign a Priority to any particular Incident or type of Incident. Where
the Customer does not nominate a Priority then it is the responsibility of the
Supplier to assign a Priority to that Incident.
20.10.4 During Duty Times, the Service Desk must notify and assign the Incident to
Qualified Personnel, including Dedicated Personnel (if any).
20.10.5 Outside of Duty Times, the Service Desk must assess whether approval of a
Customer is required under clause 29 of this Schedule 5 and if so, it must
contact the Duty Officer to obtain such approval.
20.10.6 If the Duty Officer grants approval in terms of clause 20.10.5, then the
Service Desk must notify and assign the Incident to the Qualified Personnel (or
Dedicated Personnel) who is ‘on call’;
20.10.7 If the Duty Officer does not grant approval in terms of clause 20.10.5, the
Service Desk must:
(a)
advise the User who reported the Incident of the resolution status of
the Incident and the expected Resolution Time within Duty Times;
(b)
notify and assign the Incident to the Qualified Personnel or Dedicated
Personnel (if any); and
(c)
continue the Incident and Problem Management Resolution Process
within the Duty Times.
20.10.8 The Qualified Personnel or Dedicated Personnel (if any) assigned to the
Incident must conduct an assessment of the fault causing the Incident, and
whether any Third Party Support or other Qualified Personnel are required to
resolve the Incident.
20.10.9 If Third Party Support or other Qualified Personnel are not required to resolve
the Incident, the Qualified Personnel or Dedicated Personnel (if any) must
resolve the Incident via RDA, or the Qualified Personnel or Dedicated
Personnel (if any) must attend at the relevant Site to resolve the Incident.
20.10.10 If Third Party Support or other Qualified Personnel are required to resolve an
Incident, the Qualified Personnel or Dedicated Personnel (if any) must notify
the Third Party Support or other Qualified Personnel, and:
(a)
the Incident must be resolved by the Third Party Support or Qualified
Personnel; and
(b)
the Qualified Personnel or Dedicated Personnel (as the case may be)
must coordinate resolution of the Incident, including liaising,
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monitoring, and reporting on the resolution status of the Incident to
the Customer.
20.10.11 The Supplier must assess whether any Spare Parts are required to resolve
the Incident, and if they are:
(a)
(b)
where the Spare Part required is not an analogue handset:
(i)
the Supplier may use a Customer’s Spare Parts and must
replace that Spare Part at no additional cost to the Customer;
or
(ii)
if a Customer does not have any Spare Parts available, the
Supplier must obtain the Spare Parts at no additional cost to
the Customer;
(iii)
the Supplier must implement a Practical Work Around solution
if required by and directed to do so by a Customer; or
where the Spare Part required is an analogue handset:
(i)
the Supplier must use a Customer’s Spare Parts; or
(ii)
if a Customer does not have any Spare Parts available, the
Supplier must notify the Customer;
(iii)
the Supplier must implement a Practical Work Around solution
if required by and directed to do so by a Customer; and
(iv)
the Qualified Personnel or Dedicated Personnel (of any) must
arrange an appropriate time to install the Spare Parts with the
Customer;
20.10.12 If the Qualified Personnel are unable (or are unlikely to be able) to resolve
the Incident within the Maximum Resolution Time, the Supplier must escalate
the Incident to Factory/Specialist Support and:
(a)
notify the Customer of this escalation;
(b)
implement a Practical Work Around solution if required by and
directed to do so by a Customer; and
(c)
notify the Customer of the solution to resolve the Incident, and
arrange an appropriate time to implement this solution.
20.10.13 The Supplier must resolve all Incidents.
20.10.14 The Supplier must advise the relevant Customer when an Incident is
resolved and the conduct of actions performed under the Incident and Problem
Management Process.
20.10.15 To enhance the Parties’ understanding of the Incident and Problem
Management Process described in this clause 20.10, a flow chart entitled
‘Incident and Problem Management Process Flow Chart’ is attached to this
Schedule 5 as “Attachment 1”. If the ‘Incident and Problem Management
Process Flow Chart’ is in any way inconsistent with this clause 20.10, then the
provisions of this clause 20.10 prevail.
21.
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CONFIGURATION MANAGEMENT SERVICE
21.1
The Supplier must have in place an appropriate ‘Configuration Management’ system
for the provision of Voice Network Management Services that:
21.1.1 ensures current, accurate and comprehensive information about all
components of a Customer’ Voice Network infrastructure and systems used in
providing the Voice Network Management Services and that the information is
retained and maintained through a ‘Configuration Management Database’
[“CMDB”] or similar;
21.1.2 integrates with, and supports, a Change Management impact assessment
process;
21.1.3 captures ‘updates’ arising from changes made to the CMDB; and
21.1.4 supports the Incident and Problem Management Process.
21.2
22.
The Supplier shall offer ‘read only’ access privileges to its CMDB to a Customer’s
nominated representative.
CHANGE MANAGEMENT SERVICE
22.1
The Supplier must:
22.1.1 record all Requests for Change, and where necessary, coordinate Changes
with ‘Across Government Service Desk’ as contemplated in Schedule 12;
22.1.2 ensure all necessary approvals have been obtained before a Request for
Change is implemented;
22.1.3 ensure that all Changes are tested before implementation;
22.1.4 implement all approved Changes;
22.1.5 provide visibility to the Customer of all Requests for Change, including details
such as the status of each approved or implemented Change; and
22.1.6 provide any other Change Management Service necessary to meet the
requirements of a Customer Agreement.
22.1.7 The Supplier must not implement any Change provided under a Customer
Agreement without the prior written approval of the Customer.
23.
RELEASE MANAGEMENT SERVICE
The Supplier must provide the Release Management Services to ensure optimal
performance of a Voice Network.
24.
SECURITY SERVICES
24.1
In addition to other security requirements set out in this Agreement (including the
requirements set out in Schedule 13), the Supplier must:
24.1.1 control logical access to facilities, equipment and data that are under the
Supplier’s control; and
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24.1.2 control physical access to the Supplier’s premises, facilities, equipment and
data.
25.
26.
ALARM MONITORING
25.1
The Supplier must monitor Equipment alarms for those Sites identified as requiring
alarm monitoring in any Customer Agreement or Customer Order. The Supplier’s
alarm management centre must monitor Equipment alarms 24 hours per day, 7 days
per week, 365 days per year.
25.2
If an alarm condition occurs outside of the Duty Times and the Incident cannot be
resolved remotely, a Supplier must follow the procedure specified in clauses 29 of
this Schedule.
25.3
External environmental (via an ‘opto port’) alarms are to be monitored in accordance
with this clause, if requested by a Customer in a Customer Agreement or Customer
Order.
REMOTE DIAGNOSTIC ACCESS
The Supplier must provide Remote Diagnostic Access to the Sites.
27.
PREVENTATIVE MAINTENANCE
27.1
The Supplier must pro-actively support Customer’s Voice Networks to prevent
malfunction and to be prepared in the event of breakdown or Incident
[“Preventative Maintenance”], including, without limitation, the following duties and
functions:
27.1.1 system backups of all Equipment software, in the manner and frequency as
directed by a Customer in a Customer Agreement or Customer Order;
27.1.2 Site audits in the manner and frequency as directed by a Customer in a
Customer Agreement or Customer Order;
27.1.3 password updates for RDAs;
27.1.4 environment checks, to ensure the environment in which the Equipment is
located will not contribute to a malfunction;
27.1.5 periodic polling of all Equipment; and
27.1.6 advise a Customer when maintenance or replacement of the battery back-up
power systems, owned by the Customer and provided for the Equipment, is
required.
27.2
Preventative Maintenance must be carried out in accordance with reasonable
directions issued by a Customer in a Customer Agreement or Customer Order.
27.3
If the Supplier identifies an issue that may cause an Incident, the Supplier must take
action to remedy the issue and to prevent such an Incident occurring.
27.4
The Supplier must report, in accordance with Schedule 7, the results of and issues
arising from Preventative Maintenance, including any issue identified by the Supplier
that is affecting, or may in the future affect, the operation of the Equipment.
28.
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MANAGEMENT OF SPARE PARTS
28.1
The Supplier must manage the supply and use of Spare Parts (if any) owned by a
Customer. This requirement includes, without limitation:
28.1.1 sending Spare Parts off-site for repair or replacement;
28.1.2 replacing any Supplier branded Spare Parts which are current production stock
(except analogue handsets) owned by a Customer, and used by the Supplier in
resolving Incidents, at no additional cost to the Customer; and
28.1.3 maintaining the list of Spare Parts owned by the Customer (if any).
29.
30.
28.2
Where a Customer maintains a stock of Spare Parts, the Customer shall be
responsible for secure storage of its Spare Parts.
28.3
Where the Supplier has used the Customer’s Spare Part in resolving an Incident
and has replaced that Spare Part, title and risk in the replacement Spare Part
passes to the Customer on delivery to the Customer.
28.4
Where a Customer does not have a Spare Part available, and the Supplier has
obtained the Spare Part, title and risk in that Spare Part passes to the Customer
when it is installed as the permanent resolution of an Incident.
WORK OUTSIDE OF DUTY TIMES
29.1
The Supplier must perform Services outside of Duty Times if it has received a
request from a Customer to do so.
29.2
Subject to clause 29.3 and any other provision in this Schedule 5, the Supplier may
only perform Services outside of Duty Times if it has obtained the prior written
approval of a Customer.
29.3
If the Supplier is performing services to resolve a Critical Incident during Duty
Times, the Supplier must continue performing those services until complete or
escalated to Factory/Specialist Support (whichever is first), regardless of whether
the work is continuing outside of Duty Times.
29.4
If the Supplier is performing services to resolve a Major or Minor Incident or a
Service Request, the Supplier must obtain approval from a Customer to continue
performing those services or any other service outside of Duty Times.
29.5
If services to resolve an Incident are interrupted as a result of Duty Times in any one
Business Day, the Resolution Time for that Incident will be suspended until the start
of the next Business Day.
29.6
“Call Out” prices agreed in a Customer Agreement or Customer Order apply to
Services performed by the Supplier outside of Duty Times in accordance with this
Schedule 5.
SERVICE RESTRICTIONS
30.1
The Supplier must not vary PABX system tables or other system configurations
without the prior written approval of a Customer. Where approval cannot be gained
within a timely manner, the Qualified Personnel or Dedicated Personnel (as the case
may be) may vary the table as required, but only to rectify a Critical Incident. The
Supplier must immediately notify a Customer of any variation of system tables by
Page 18
facsimile or email, and such notification must provide a comprehensive description
of the variation.
30.2
31.
The Supplier must not reset the Equipment or otherwise cause services to become
unavailable without the prior written approval of a Customer. Where approval cannot
be gained within a timely manner, the Qualified Personnel or Dedicated Personnel
(as the case may be) may reset the Equipment as required, but only to resolve a
Critical Incident. This sub-clause applies to initialising PABX systems through the
use of software initialisation commands (SINZ or its equivalent).
THIRD PARTY SUPPORT
31.1
If an Incident involves Third Party Equipment, the Supplier must coordinate and
manage the resolution of that Incident through the Incident and Problem
Management Process with the relevant Third Party Support, and must resolve such
an Incident in accordance with the Third Party Support’s contractual obligations to
the State or a Customer.
31.2
The Service Levels specified in this Schedule do not apply to resolution of Incidents
under this clause 31. The Supplier must resolve Incidents in accordance with any
service levels specified in the Third Party Support’s contract with the State or a
Customer.
31.3
31.3.1 “Third Party Equipment” means Equipment supplied by a party who is not a
Party to this Agreement 3; and
31.3.2 “Third Party Support” means the party, who is not a Party to this Agreement,
engaged by the State or a Customer to provide maintenance and support
services for the relevant Third Party Equipment 4.
5
32.
OPTIONAL SERVICES
32.1
Optional Services may be purchased by a Customer at any time during the Term by
agreeing with the Supplier, either through a Customer Agreement or Customer
Order, the nature and requirements of the Optional Services.
32.2
The prices for the Optional Services are to be agreed between a Customer and the
Supplier.
32.3
“Optional Services” means the whole or any part or parts of the following services:
32.3.1 MACs other than the provision of advice to a Customer on implementation and
operational issues that may be associated with MAC;
32.3.2 work associated with the installation of new services or Voice Network nodes
other than the provision of advice to a Customer on implementation and
operational issues that may be associated with the installation of such new
services or Voice Network nodes; and
3
5
Amended by Variation No.4# DATED 15/2/2016 (Knet: 9924758
4
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PART 4 – DEFINITIONS
39.
DEFINITIONS
In this Schedule 5:
39.1 “Incident and Problem Management Services” means the services set out in
clause 20.3 of this Schedule 5;
6
39.2
“Greater Adelaide Metropolitan Area” means the area within a fifty (50) kilometre
radius of the General Post Office, Adelaide;
39.3
“MAC” means moves, adds and changes related to the relocation of handsets and
associated ‘jumpering’;
39.4
“Number of Equipped Port Hours per month” is calculated as the “contract
coverage” days in that month multiplied by the “contract coverage” hours per day
multiplied by the lowest number of Equipped Ports in working order (and not made
unavailable by an Incident) at any time within that month. For the purpose of this
definition, “contract coverage” means the hours per day, and days per month
within the Duty Times;
39.5
“Total Unavailable Equipped Port Hours” is calculated as the cumulative sum, in
respect of each Incident, of the time taken to resolve an Incident in regard to each
Incident, minus any Agreed Customer Delay under clause 20.9, multiplied by the
total number of Equipped Ports made unavailable to the Users because of the
Incident.
39.6
“Optional Services” means the services set out in clause 32 of this Schedule 5;
39.7
“Programming Work” means the programming of the Voice Network or any Third
Party Equipment, with the exception of the programming of station level MACs;
39.8
“System Integral Handset” means a Supplier developed handset that supports
PROTIMS or Supplier enhanced SIP, designed for operation only on Supplier
developed platforms or any other handset previously agreed between the Customer
and the Supplier and identified in a Customer Agreement 6;
39.9
7
39.10
8
References to ‘software’ in Schedule 5 includes ‘firmware’; and
Any word or phrase used in this Schedule 5 that has or have a specific meaning
with reference to the Information Technology Infrastructure Library (“ITIL”)
methodology, as set out in the ‘Glossary of terms Definitions and Acronyms’ Best
Practice for Service Support, Office of Government Commerce, Sixth impression
2002, ISBN 0113300158, (e.g. “Change”, “Change Management”, “Problem”,
“Problem Management”, “Service Request”, “Service Desk”) are proposed to have
that meaning, unless something else is clearly intended.
8
7
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SCHEDULE 6
NOT USED
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SCHEDULE 7
REPORTING REQUIREMENTS
1.
REPORTS (PRODUCTS AND PRODUCT SERVICES)
1.1
The Supplier must provide the State and all Customers, within five (5)
Business Days of the end of each Quarter during the Term, unless agreed
otherwise with the State and/or a Customer, with the following reports for all
Products and Services (related to the provision of Products) delivered during
the month:
1.1.1 in relation to the Products:
(a)
(b)
details of all Products purchased in that quarter, including in
relation to each Product purchased:
(i)
the purchasing Customer;
(ii)
the Customer Order number; and
(iii)
the Customer Agreement number; and
details of all Warranty Obligations in relation to that Product.
1.1.2 in relation to the Services (related to the provision of Products):
(a)
details of all Services provided in that quarter, including in
relation to each Service provided:
(i)
the purchasing Customer;
(ii)
the Customer Agreement number;
(iii)
nature of the Services provided;
(iv)
the physical location at which each Service was
performed; and
(v)
identification of any Product or Products to which the
Services have been provided.
1.1.3 a report containing sufficient information to demonstrate Supplier
compliance or non-compliance with all Service Levels specified in
clause 15 of Schedule 5 (or as otherwise specified in a Customer
Agreement or a Customer Order);
1.1.4 a report containing a summary of all invoice information during the
quarter, which must specify:
(a)
the total amount invoiced for each Customer Order;
Page 2
(b)
the total amount invoiced to all Customers for each Product
and Service (if any associated with that Product);
(c)
the payments received by the Supplier from each Customer;
(d)
the outstanding amounts payable by each Customer to the
Supplier in accordance with a Customer Agreement; and
(e)
the amounts invoiced by the Supplier which the Customer
disputes;
1.1.5 a report which specifies the issues raised by a Customer, which must
specify:
(a)
the Customer to which the issue relates;
(b)
a summary of the issue; and
(c)
the status of the issue (resolved, referred or unresolved); and
1.1.6 any other report reasonably required by the State or a Customer.
2.
REPORT SUMMARY (PRODUCTS AND PRODUCT SERVICES)
The Supplier must provide the State and all Customers with a summary of the reports
identified in clause 1 of this Schedule within five (5) Business Days of the end of each
Quarter during the Term.
3.
REPORTS (PABX MAINTENANCE AND SUPPORT SERVICES)
3.1
The Supplier must provide each Customer with the following reports within
five (5) Business Days of the end of each calendar month during the Term
unless agreed otherwise with a Customer:
3.1.1 “PABX Processor Utilisation Report” in relation to the Sites as directed
by a Customer;
3.1.2 “Trunk Route Utilisation Report” in relation to the Sites as directed by a
Customer;
3.1.3 a report specifying the achieved “Availability” in that month as
specified in a Customer Agreement and the lowest number of
Equipped Ports in working order (and not made unavailable by an
Incident) on each Site at any one time in that month;
3.1.4 a report on the Supplier’s performance against Service Levels
specified in clauses 36 and 37 of Schedule 5 (or as otherwise
specified in a Customer Agreement or a Customer Order);
3.1.5 a report in regard to the Incidents occurring in that month, including:
(a)
the total number of Incidents on each Site in that month;
(b)
the total number of Incidents per Priority category on each Site
in that month;
(c)
Page 3
identification of any Incident which failed to be resolved within
the applicable Resolution Time as required by a Customer
Agreement, including in regard to each such Incident:
(i)
when the Incident Report was received by the Supplier;
(ii)
when Incident Resolution should have been complete
under Schedule 5; and
(iii)
when Incident Resolution was completed.
3.1.6 a report specifying the total number of Equipped Ports, per Site and in
aggregate, on the last Business Day of that month, with evidence to
substantiate those numbers. This report must include a list specifying
for each Site:
(a)
the station type;
(b)
the line equipment; and
(c)
the numbers;
(d)
a Preventative Maintenance report pursuant to the Customer
Agreement, specifying the results of and issues arising from
Preventative Maintenance in that month, including any issue
identified by the Supplier that is affecting, or may in the future
affect, the operation of the Equipment; and
(e)
an “Engineering Incident Report” identifying each Incident
escalated to Factory/Specialist Support in the Incident
Resolution Process, and specifying in regard to each Incident
so identified:
(i)
the current status of Incident Resolution; and
(ii)
when Incident Resolution is expected to be completed.
3.1.7 on demand by a Customer at any time during the Term, a report in
relation to any Incident, specifying:
(a)
the Site at which the Incident occurred;
(b)
the Priority of the Incident;
(c)
the Resolution Time associated with the Incident;
(d)
the action taken to resolve the Incident; and
(e)
the parts replaced or repaired in resolution of the Incident.
Page 4
3.1.8 in the form of a notification, a report of any major alarm or outage of
the PABX system immediately after the Supplier becomes aware of
such a major alarm or outage.
3.1.9 a report in regard to Equipment including:
3.2
(a)
the Equipment that will reach End-of-Life in the following
calendar month; and
(b)
the Equipment that will reach End-of-Support in the following
calendar month 1.
The Supplier must, at all times during the Term, provide real time access for
a Customer, and multiple Users as directed by a Customer, to the Supplier’s
Incident logging system via an online web portal (“Online Portal”), which
must specify:
3.2.1 the current status of all Incidents;
3.2.2 the history of an Incident and its Incident Resolution; and
3.2.3 the actions taken to resolve an Incident.
3.3
4.
The Supplier must provide any other report required by a Customer.
REPORT SUMMARY (PABX MAINTENANCE AND SUPPORT SERVICES)
The Supplier must provide a Customer with a summary of the reports identified in the
preceding clause 3 of this Schedule within five (5) Business Days of the end of each
calendar month during the Term.
4A QUARTERLY REPORTS (PABX MAINTENANCE AND SUPPORT SERVICES)
4A.1 The Supplier must provide the State and Customers within five (5) Business
Days of the end of each Quarter during the Term, unless agreed otherwise with
the State and/or a Customer, with the following reports:
4A.1.1 a report specifying all Equipment that will reach End of Life in the following
Quarter; and
4A1.2 a report specifying all Equipment that will reach End-of-Support in the following
Quarter 2.
5.
REPORT REQUIREMENTS
The Supplier must provide a Customer with the reports specified in clauses 1 to 4 of
this Schedule 7:
1
2
Page 5
5.1
in an electronic format available to the State and a Customer on-line; and
5.2
unless otherwise indicated in this Schedule 7, in hard copy presented to a
Customer in meetings held monthly;
5.3
within the relevant time period specified for that report in this Schedule 7, or
as otherwise required by a Customer; and
5.4
with any other content specified by a Customer.
________________________________________________________________________________Page 1
SCHEDULE 8
(Clause 18)
1.
1.1
The Supplier must prepare and ensure the generation of records or data
relating to the following matters:
1.1.1
the provision of the Products and Services, including the satisfaction of
Service Levels and Key Performance Indicators; and
1.1.2
billing and reporting requirements;
1.2
take all reasonable measures in accordance with prudential commercial
practice to protect the records and data;
1.3
make adequate and timely back up copies of the data and maintain those
back up copies in a secure manner;
1.4
maintain summary back-up records of all the Products and Services provided
by the Supplier so that the data can be re-entered into the Supplier’s system
in case the primary records are lost;
1.5
if and when required, provide the State with copies of the records whether in
paper or electronic form; and
1.6
retain such records and data for the term of this agreement and thereafter for
such period as may be required by law.
1466 PA NEC PABX Services and Equipment
Schedule 08
ANNEXURE A
SCHEDULE 9
CONTRACT LEVY
1.
CONTRACT LEVY
The Supplier must pay to the Nominated Agency an amount (“Contract Levy”)
at the rate set out in clause 2 of this Schedule 9 on the GST exclusive invoice
value of all Deliverables invoiced to a Customer during each Quarter of the Term.
2.
LEVY PERCENTAGE
The Contract Levy will be 1.3% of each invoice rendered by the Supplier (being
the same percentage for all Customers) or such other rate as advised from time
to time by the State’s Principal Contract Administrator.
3.
INVOICING
The Supplier must, in relation to each invoice issued by the Supplier to a
Customer:
4.
3.1
calculate the applicable Contract Levy and include it in the invoice; and
3.2
calculate the GST applicable to the Contract Levy and include it in the
invoice.
COPIES OF INVOICES
If requested by the State’s PCA, the Supplier must make available to the State’s
PCA (at no cost to the State or a Customer) electronic copies of all invoices
issued by the Supplier to Customers under this Agreement in either Word, Excel
or PDF comparable format.
5.
REPORT ON CONTRACT LEVY CHARGED
5.1
The Supplier must provide to the Nominated Agency throughout the Term
and no later than twenty (20) Business Days after the end of the month an
electronic copy of the Report on Contract Levy Charged as set out in
clause 5.2 of this Schedule 9.
5.2
A “Report on Contract Levy Charged” means a monthly report in Excel
compatible format that sets out the amount of the Contract Levy charged
to each month from Customers (“Relevant Customers”) pursuant to this
Schedule 9. The report must specify:
5.2.1 the names, addresses and ABNs of the Relevant Customers;
7091787_1446 NEC PABX PA Schedule 09 v1.0F
This Variation #1 - Schedule 9 replaces the original Schedule 9 in its entirety
Page 1 of 2
5.2.2 the Supplier’s customer numbers allocated to the Relevant
Customers;
5.2.3 the dates of the invoices issued by the Supplier to the Relevant
Customers for the Contract Levy pursuant to this Schedule 9;
5.2.4 the invoice numbers of the invoices issued by the Supplier to the
Relevant Customers for collection of the Contract Levy pursuant to
this Schedule 9;
5.2.5 the GST attributable to the Contract Levy charged to Relevant
Customers; and
5.2.6 such other information as the Supplier agrees with the State’s
Principal Contract Administrator.
5.2.7 If the Supplier does not deliver the Report on Contract Levy
Charged to the Nominated Agency by the date specified in clause
5.1 of this Schedule 9, the Nominated Agency will be entitled to
claim interest at the Prescribed Rate on the amount of Contract
Levy due from the date that the Report on Contract Levy Charged
should have been delivered until the date that the Report on
Contract Levy Charged is received.
6.
7.
PAYMENT OF CONTRACT LEVY
6.1
The Supplier must pay to the Nominated Agency the amount of the
Contract Levy (plus the associated GST), that has been or should have
been charged in a Quarter within one (1) calendar month of receipt by the
Supplier of a Tax Invoice from the Nominated Agency setting out the
amount to be paid in respect of that Quarter.
6.2
The Supplier must make payment to the Nominated Agency by way of
‘Electronic Funds Transfer’ unless some other method of payment is
agreed between the Parties.
LATE PAYMENT
7.1
If the Supplier does not pay to the Nominated Agency the amount of the
Contract Levy (including the GST) specified in the Tax Invoice issued by
the Nominated Agency by the date specified in clause 6.1 the Nominated
Agency will be entitled to claim interest at the Prescribed Rate on the
unpaid amount, from the date that the Tax Invoice should have been paid
until the date that payment is received.
7091787_1446 NEC PABX PA Schedule 09 v1.0F
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SCHEDULE 10
DOCUMENTATION
1.
2.
GENERAL REQUIREMENTS APPLYING TO DOCUMENTATION
1.1
“Documentation” means the documentation the Supplier is required to
provide to a Customer pursuant to clauses 2 and 3 of this Schedule 10.
1.2
Documentation must be provided to the Customer in printed or electronic
format (or both) as specified by the Customer. The electronic version may
either be provided on a suitable media or made accessible to the Customer
via the Internet.
1.3
The Documentation must be:
1.3.1
of a reasonable standard in terms of its presentation, accuracy and
scope;
1.3.2
the most current and up-to-date version available;
1.3.3
in the English language; and
1.3.4
all key terms, words and symbols must be adequately defined.
1.4
The Supplier must amend any inaccurate Documentation within ninety (90)
days of the Supplier becoming aware of the inaccuracy, and must supply to
the Customer at no cost, replacement Documentation immediately following
expiration of this period.
1.5
The Customer may make such copies of the Documentation as may be
required for use by the Customer.
PRODUCT DOCUMENTATION
The Supplier must, for each Product supplied to a Customer, provide at no cost to the
Customer, at least one copy of the following:
2.1
user manual comprising details regarding the operation, functionality and
proper use of the Product;
2.2
technical reference materials containing information about the specification
and configuration of the Product;
2.3
user manuals and licence certificates for any software supplied with the
Product; and
2.4
any other materials that the Supplier would normally provide to a customer
acquiring the same or similar product.
Page 2
3.
SERVICES DOCUMENTATION
The Supplier must, for each Service supplied to a Customer, provide at no cost to the
Customer, any documentation reasonably required by a Customer in order for that
Customer to:
3.1
confirm that the Services have been performed satisfactorily and in
accordance with the Agreement;
3.2
where the Service relates to the installation or upgrade of Products, details of
the changed configuration of the Product and any impacts on its operation;
and
3.3
where the Service relates to the installation of software, details of how the
software has been configured.
Page 1
SCHEDULE 11
(Clause 24)
ELECTRONIC COMMERCE
1.
SUPPLIER’S ELECTRONIC COMMERCE SYSTEM
General
1.1
The Supplier must commence implementation and maintenance of a webbased electronic commerce system for access by Customers that:
1.1.1
provides details of the Products and Services offered under this
Agreement;
1.1.2
supports each of the functional, access, security and maintenance
requirements specified in this Schedule; and
1.1.3
incorporates data and other information specific to, and tailored for use
by, the State.
1.2
The Supplier acknowledges that any cost incurred in maintaining an electronic
commerce system in accordance with this Schedule will not be charged to the
State or Customers.
1.3
Customers will not be required to undertake transactions using the Supplier’s
electronic commerce system and the State makes no assurances as to the
likely volume or value of any transactions that may occur through the system.
1.4
In addition to the obligations contained in this Schedule, the Supplier may be
requested to implement additional electronic commerce capabilities for
particular Customers, the arrangements and costs for which will be addressed
in the relevant Customer Agreement.
Functionality
1.5
The electronic commerce system made available to the State and Customers
under this Agreement must:
1.5.1
be easily accessible over the Internet;
1.5.2
allow Customers to easily search, locate and select Products and
Services for purchase without a significant requirement for user
training;
1.5.3
restrict the Products and Services displayed to Customers, to those
Products and Services contained in Schedule 5;
1.5.4
where approved by the State, allow Customers to buy Products and
Services on-line;
1.5.5
enable electronic invoices including the content specified in Schedule
18 to be viewed;
1.5.6
provide on-demand reporting to a Customer of:
(a)
historic purchases by that Customer (including a description of
the Products and Services purchased, pricing details and
where available other relevant information); and
Page 2
(b)
asset information regarding purchases made by the Customer
(including technical information regarding the Products, the
purchase date and serial number),
1.5.7
provide the same on-demand reporting as specified in clause 1.5.6 but
at a statewide level for access by the State; and
1.5.8
provide current status tracking reports of orders, including agreed
Delivery date and estimated Delivery date.
Access and Security
1.6
The Supplier’s electronic commerce system must be appropriately secure,
and access by Customers must be controlled through username and
password authentication (or similar mechanism).
1.7
The electronic commerce system must enable levels of access to be defined
by the Customer. This must include restricting the ability of a Customer to
access details of another Customer contained on the site, unless otherwise
authorised by that Customer.
1.8
The electronic commerce system must support multiple, simultaneous logins.
Maintenance
1.9
The Supplier must maintain the currency of the Product and Service
information contained on the electronic commerce system in accordance with
Exhibit 4.
SCHEDULE 12
NOT USED 1
1
This Variation No.4# deletes Schedule 12
in its entirety DATED 15/2/2016 (Knet:9924758)
Page - 1
SCHEDULE 13
The Supplier:
1. must be aware of, and ensure that relevant Supplier Personnel are familiar
with, the policy documents (Policy Documents) indicated in the list below;
2. where its activities in performance of this Agreement are activities of the
nature that the Policy Document is intended to regulate, must comply with the
Policy Document;
3. must not do anything that would impede or prevent a State Agency from
complying with its obligations under a Policy Document; and
4. must perform its obligations in the manner most likely to ensure or facilitate
compliance with a Policy Document.
5. The State shall provide the Supplier with a copy of each of those policies,
guidelines, standards and other requirements that are not publicly available on
the Internet.
6. The Supplier acknowledges that each of those policies, guidelines, standards
and other requirements that are not publically available on the Internet are
Confidential Information.
List of Policies, Standards, Guidelines and Other Requirements
ICT Policy Statement 1 – Compliant Authorities 1
ICT Ruling 1 – Exemptions
2
OCIO/S6.1.5 Technology – Standard for Microsoft desktops
OCIO/S6.3 Technology – Network Technology Standards
OCIO/S6.8.1 Technology-Threat Protection-Infrastructure Threat Protection
Software Standard
OCIO/6.4.3 Technology-Technology-Services Software-Messaging Service
Such other policies, standards, guidelines and other requirements as notified
by the State from time to time, including but not limited to those found at:
http://www.dpc.sa.gov.au/policies-standards-and-guidelines
This Variation No.4# replaces Schedule 13 in its entirety (DATED: 15/2/2016) Knet 9924758
1
2
Available on the Internet at: http://www.dpc.sa.gov.au/policies-standards-and-guidelines
Available on the Internet at: http://www.dpc.sa.gov.au/policies-standards-and-guidelines
Page - 1
Page 1
SCHEDULE 14
QUALITY ASSURANCE REQUIREMENTS
1.
CERTIFICATE OF REGISTRATION
The Supplier must maintain its certificate of registration in relation to its
compliance with AS/NZS ISO 9001:2000 throughout the Term.
2.
EVIDENCE OF REGISTRATION
The Supplier must provide a copy of the certificate of registration of
compliance described in clause 1 above to the State upon request at any time
and from time to time throughout the Term.
3.
AUDITOR’S REPORT
The Supplier must provide to the State upon request at any time and from time
to time throughout the Term with a copy of the auditor’s report in regard to the
Supplier’s certificate of registration of compliance described in clause 1 above.
Page 1
SCHEDULE 18
INVOICES
1.
INVOICE TIMING
1.1
The Supplier must provide a single Tax Invoice in accordance with
clause 29 of Schedule 3 (unless otherwise agreed) directly to each
Customer:
1.1.1 monthly in arrears in relation to any Services set out in Part 3 of
Schedule 5. and
1.1.2 upon Acceptance by the Customer of a Product and any
Associated Services in relation to any Products and Associated
Services.
2.
INVOICE REPORTING
2.1
The Supplier must provide a report with its invoice in a format agreed
with the State, which:
2.1.1 is sufficient to enable the Customers to verify and pay each
invoice;
2.1.2 lists all Products and Services purchased for which that invoice
requires payment; and
2.1.3 identifies the purchasing Customer, including the Customer
Order number, the Customer Agreement number and the
Purchasing Agreement number.
3.
INFORMATION TO BE INCLUDED IN AN INVOICE
3.1
The Supplier must specify the following information in all invoices:
3.1.1 Supplier’s name, address and ABN;
3.1.2 Customer’s name, address and ABN;
3.1.3 unique Customer number;
3.1.4 Customer Order reference number;
3.1.5 the words “Tax Invoice” or “Adjustment Note”;
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3.1.6 where applicable, list separately each Product and Associated
Service included in the invoice amount and the price applicable
to each Product and Associated Service;
3.1.7 invoice date;
3.1.8 payment due date;
3.1.9 base amount, GST and total;
3.1.10 details of Service charges;
3.1.11 the fax number and e-mail address of where remittances can be
sent to; and
3.1.12 an invoice number.
4.
VALIDATION OF INVOICES
4.1
Where requested by a Customer, the invoice must be accompanied by
such documentation and further information that the Customer
reasonably requires to validate the amount specified in the invoice is
in accordance with this Agreement.
SCHEDULE 19 INCLUDES VARIATIONS #4 DATED (15/2/2016)
SCHEDULE 19
SECURITY REQUIREMENTS
1.
DEFINITIONS
In this Schedule:
2.
1.1
“Australian Government Protective Security Policy” means the protective
security policy established by the Australian Government and updated from
time to time. A copy of the current version may be viewed at
http://www.protectivesecurity.gov.au/
1.2
“Certification” means the process by which an organisation’s ISMS is
examined against the AS/NZS ISO/IEC 27001 standard by an accredited
certification body;
1.3
“ISMS” or “Information Security Management System” means a
management system based on a systematic business risk approach to
establish, implement, operate, monitor, review, maintain and improve
information security. It is an organisational approach to information security;
1.4
“AS/NZS ISO/IEC 27001” means the standard for information security that
focuses on an organisation’s ISMS; and
1.5
“State Government Critical Information Infrastructure” or “SGCII” has the
meaning ascribed to that term in the ISMF and the guidelines to the ISMF
copies of which may be found at http://www.sa.gov.au/policy/ismf;
SUPPLIER RESPONSIBILITIES
2.1
In supplying the Deliverables, the Supplier must be aware of, comply with and
promote the use of:
2.1.1
policies, standards, guidelines and other requirements as set out in
this Schedule 19 (as amended from time to time); and
2.1.2
any additional policies, standards, guidelines and other
requirements as notified by the State from time to time throughout
the Term.
2.2
An amendment or addition to the policies, standards, guidelines and other
requirements pursuant to the preceding sub-clause may arise from any
implementation by the State of the Australian Government Protective Security
Policy.
2.3
The Supplier must ensure that other suppliers and subcontractors they
engage with (in the provision of Deliverables) are aware of, comply with and
promote the use of the policies, standards, guidelines and other requirements
as contemplated by the preceding sub-clauses 2.1 and 2.2.
Page - 1
4.
3.4
The State shall provide the Supplier with a copy of each of those policies,
guidelines, standards and other requirements that are not publically available
on the Internet.
3.5
The Supplier acknowledges that each of those policies, guidelines, standards
and other requirements that are not publically available on the Internet are
Confidential Information.
ASSESSMENT FOR COMPLIANCE WITH AS 27001
4.1
5.
The Supplier must:
4.1.1
undertake continuous improvement reviews (at least annually) of its
ISMS for facilities, operations, practices and provision of Services,
against the parts of AS/NZS ISO/IEC 27001 and AS/NZS ISO/IEC
27002 the State reasonably considers may relate to matters
affecting the security of any of the State’s ICT Infrastructure or a
Customer’s ICT Infrastructure;
4.1.2
for the scope of services that are currently certified to AS/NZS
ISO/IEC 27001, maintain continuous AS/NZS ISO/IEC 27001
Certification for the scope of services defined in this Agreement;
4.1.3
consult with the State in relation to any issues arising from
improvement reviews and audits;
4.1.4
agree with the State a plan of action to address and resolve the
issues arising from the improvement reviews and audits; and
4.1.5
provide the State with the results and reports from the continuous
improvement reviews described in clause 4.1.1 and any audits of
the ISMS. These reports will be used by the Supplier to demonstrate
to the State the Supplier’s commitment to ongoing ISMS
improvement and the broader implementation, deployment and
introduction of ISMS information security controls.
4.2
The Supplier must conduct the activities set out in clause 4.1 of this Schedule
19 at no additional charge.
4.3
The Supplier acknowledges that it currently holds ISO/IEC 27001 Certification
for the scope of services defined in this Agreement.
LOCATION AND STORAGE OF DATA
5.1
The Supplier must not send or store State Data, Customer Data, Personal
Information or other related information any of which uses (or require the use
of) ‘protective markings’ as described in the ISMF (i.e. security classified
information) outside of Australia.
Page - 3
3
5.2
The Supplier must not send or store State Data, Customer Data, or other
related data or information associated with State Government Critical
Information Infrastructure outside of Australia without the express written
consent of the State’s Principal Contract Administrator. The approval of the
State’s Principal Contract Administrator may be given conditionally.
5.3
If the State’s Principal Contract Administrator does not provide an
unconditional approval under clause 5.2, then the Parties must, at either
Party’s request, negotiate with a view to resolving the issues that arise for the
Supplier as a result of the withholding of the approval, or the imposition of
conditions, as the case may be.
5.4
The Supplier must not send or store Customer Data outside of Australia
without the express written consent of the Customer’s chief executive (or his
or her delegate). The approval of the Customer’s chief executive (or his or her
delegate) may be given conditionally.
5.5
If the Customer’s chief executive (or his or her delegate) does not provide an
unconditional approval under clause 5.4, then the Customer and the Supplier
must negotiate with a view to resolving the issues that arise for the Supplier as
a result of the withholding of the approval, or the imposition of conditions, as
the case may be 3.
This Variation No.4# replaces Schedule 19 in its entirety DATED 15/2/2016 (Knet: 9924758)
Page - 4
SCHEDULE 20
INFORMATION PRIVACY
1.
USE
The Supplier must not obtain access to, record, retain, amend or disclose Personal
Information except:
2.
1.1
to the extent necessary to comply with obligations under this Agreement; or
1.2
if and to the extent expressly authorised by the State.
SECURITY OF PERSONAL INFORMATION
The Supplier must ensure that:
3.
2.1
any Personal Information is protected against loss, unauthorised access, use,
modification, disclosure or other misuse; and
2.2
access to Personal Information is limited to those employees or
subcontractors of the Supplier who need it for the purposes of carrying out
their duties for the purpose of this Agreement.
EMPLOYEE AWARENESS OF PRIVACY REQUIREMENTS AND UNDERTAKING
The Supplier must ensure that any employee of the Supplier requiring or having access to
any Personal Information held in connection with this Agreement:
4.
3.1
is contractually obliged to observe the Information Privacy Principles; and
3.2
is informed that failure to comply with these obligations may lead the Supplier
to take disciplinary action against the employee.
SUB-CONTRACTOR OBLIGATIONS
If Personal Information is to be available to or in the custody of a subcontractor, the
Supplier must ensure that the subcontractor assumes legally enforceable obligations
to implement these requirements as to privacy.
5.
NOTIFICATION
5.1
The Supplier must immediately notify the State if it becomes aware that a
disclosure of Personal Information may be required by law.
Page - 1
5.2
6.
The Supplier must in respect of any Personal Information held or accessed in
connection with this Agreement immediately notify the State in writing if the
Supplier becomes aware of a breach of the provisions of this Schedule.
REASONABLE REQUESTS, DIRECTIONS AND GUIDELINES
The Supplier must in respect of any Personal Information held in connection with this
Agreement cooperate with any reasonable requests or directions of the State
including, but not limited to, the issuing of any guideline concerning the handling of
Personal Information. i
i
Page - 2
Page 1
SCHEDULE 21
TRANSITION IN PLAN
1.
TRANSITION IN PLAN
1.1
The Supplier must comply with the State’s Transition Management
Methodology as set out in Exhibit 3 in the performance of its transitionin obligations.
1.2
Transition In Plans for the Services must be developed by the Supplier
and agreed with the Customer within one (1) month of the
Commencement Date.
1.3
The Supplier and the State must perform all tasks they are allocated in
the Transition In Plan within ninety (90) calendar days of the
Commencement Date.
1.4
The Supplier must perform all tasks it is allocated in the Transition In
Plan at no cost to the State.
Page 1
SCHEDULE 22
TRANSITION OUT PLAN
1.
2.
GENERAL
1.1
For the purposes of this Schedule, the “Transition-out Period” is the
three (3) month period leading up to expiry, or following termination, of
this Agreement.
1.2
During the Transition-out Period, the Supplier must perform all tasks it
is allocated, and within the time frames as set out, in the Transition-out
Plan, developed pursuant to the following clause of this Schedule.
1.3
The Supplier is to perform all tasks it is allocated in the Transition Out
Plan in parallel and without interruption to the provision of Products,
and Services provided by the Supplier to Customers.
1.4
The development of a Transition Out Plan by the Supplier of the
agreed transition-out services must be at no cost to the State.
DEVELOPMENT OF TRANSITION OUT PLAN
2.1
The Supplier must develop a Transition Out Plan with the State
pursuant to the Transition Management Methodology as set out in
Exhibit 3, or any updated methodology as provided by the State, within
ninety (90) days of the Commencement Date.
2.2
The Parties must meet annually for the purpose of reviewing, and
agreeing upon any necessary changes to, the Transition Out Plan.
2.3
For the purpose of this Agreement, a “Transition Out Plan” is a
document agreed between the Supplier and the State which must
include at a minimum the following:
2.3.1
allocation of responsibilities between the State and Supplier
with respect to transition-out activities;
2.3.2
obligations on the Supplier to give effect to clauses 2.2 and 2.4
of this Schedule;
2.3.3
the time frames within which the transition-out tasks must be
completed;
2.3.4
a description of all activities, and risk management planning,
required for the transition-out process;
2.3.5
a process of transition-out which ensures business continuity to
the State and the Customers;
2.3.6
a timetable and process for transition-out;
Page 2
2.4
2.3.7
a description of the resources required by the Supplier and
from the State for the transition-out activities to be successfully
performed;
2.3.8
a description of the custody, archiving and destruction activities
of any State Data and Customer Data and material retained by
the Supplier during the Term;
2.3.9
details of knowledge transfer, and delivery of documentation,
during transition-out; and
2.3.10
the process for the provision of records from the Supplier to the
State, which must include the records specified in clause 2.4 of
this Schedule.
The Supplier must provide the State, where requested, as part of the
transition-out process, with the following records:
2.4.1
copies of all Service reports, where reasonable, in relation to
the performance of this Agreement;
2.4.2
copies of all billing records in relation to the performance of this
Agreement;
2.4.3
details of all policies and procedures developed during
transition in, and maintained during the operation, of this
Agreement; and
2.4.4
list of outstanding issues raised by Customers with the Supplier
in relation to the Agreement.
Page 1
SCHEDULE 23
1.
PACKAGING OF PRODUCTS
1.1
If requested by the Customer, and where it is reasonable to do so, the
Supplier is required to take back all packaging materials used in the
Delivery of Products to a Customer’s site for reuse or recycling at no
additional cost.
1.2
The Supplier must adhere to the requirements of the National
Packaging Covenant in relation to its activities under this Agreement.
Page 1
SCHEDULE 24
COMMUNICATION
1.
2.
3.
GENERAL COMMUNICATION REQUIREMENTS
1.1
Except for manifest errors, the State may rely upon the accuracy of all
Notices issued by the Supplier.
1.2
Where in this Agreement, a Party is entitled to grant or
consent or approval from the other, the Party whose
approval is required must respond to such a request
specified in this Agreement, or if no time is specified
manner.
withhold its
consent or
in the time
in a timely
CUSTOMER AGREEMENT COMMUNICATIONS REQUIREMENTS
2.1
Unless otherwise stated in a Customer Agreement, the provisions
specified in this Schedule 24 shall equally apply with regard to
communications made between the Supplier and a Customer.
2.2
Where the State and the Supplier agree that the Supplier should
provide information to Customers in respect to contract management
of this Agreement, all intended communications (whether by printed
material, electronic circulars, Internet data) must be approved by the
State’s Principal Contract Administrator in writing before being
disseminated to Customers.
MEETINGS
In addition to the requirements specified in this Agreement and any Customer
Agreement, the Supplier:
3.1
3.2
Must attend the following quarterly meetings with the State and all
Customers held within five (5) Business Days of the end of each
Quarter within the Term:
3.1.1
a “Contract Management Meeting” for the purposes of, without
limitation, Supplier presentation and review of the reports
referred to in Schedule 7, review of Service Level compliance,
account management performance, general business issues
and business directions; and
3.1.2
an “Operational/Technical Meeting” for the purposes of, without
limitation, review of network performance, Service Level
compliance, network improvement.
must, (as far as practicable), give the State or a Customer not less
than five (5) Business Days prior Notice if it desires to meet with the
Page 2
State or that Customer. The State’s Principal Contract Administrator,
or the Customer’s Customer Agreement Administrator, whichever is
relevant, may waive this requirement in his/her absolute discretion;
3.3
must (as far as practicable) ensure that its attendees to meetings are
suitably skilled and informed as to the nature, purpose and intent of
the meeting;
3.4
acknowledges that (unless otherwise agreed) meetings will be held inperson and in or around the City of Adelaide at locations specified by
the State or a Customer;
3.5
acknowledges that the Party convening a meeting shall be responsible
for preparing an agenda and publishing that agenda sufficiently in
advance of the meeting to allow proposed attendees a reasonable
opportunity to prepare for the meeting (where practicable not less than
two (2) Business Days);
3.6
acknowledges that unless otherwise agreed by the attendees at a
meeting, the Party convening the meeting shall be responsible for
compiling a record of the meeting and issuing copies of the record to
the respective attendees within five (5) Business Days of the meeting;
and
3.7
acknowledges that where the Parties agree that a meeting be
conducted via telephone or video conferencing, the Party convening
the meeting shall be responsible for establishing the necessary
connection and any extraordinary costs arising from such mode of
meeting.
Page 1
SCHEDULE 25
NOT USED
Page 1
SCHEDULE 26
1.
The Parties to this Agreement designate the following provisions of this Agreement as
confidential:
1
1.1
Schedule 17 - Price and Price Review;
1.2
Exhibit 1 - StateNet Service Management Processes 1;
1.3
Exhibit 4 – StateNet Conditions of Connection;
1.4
Schedule 15 – Key Performance Indicators; and
1.5
Schedule 16 – Service Debits.
Page 1
SCHEDULE 27
PERSONNEL
1.
PERSONNEL DETAILS
The Supplier must supply the following details, pursuant to clause 40.5, for
each of the personnel referred to in that clause:
1.1
name;
1.2
job title; and
1.3
description of job function.
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SCHEDULE 28
SOFTWARE
1.
SOFTWARE - LICENSING
1.1
1.2
2.
In respect of Software supplied to the State with a Product under this
Agreement, the Supplier must:
1.1.1
grant a licence to the State where the Supplier is the Software owner;
and
1.1.2
ensure that the State is granted a license to the Software by any third
party Software owner (“Licence”).
The Licence referred to in clause 1.1 must:
1.2.1
be a perpetual Licence granted from the Software owner to the State;
1.2.2
commence no later than the first use of the Product at the State’s
premises;
1.2.3
include the right to permit the State’s service providers to operate, use
and display the Software for the purpose of carrying out services;
1.2.4
include the right to make back up copies; and
1.2.5
entail no additional payments by the State.
INFRINGING SOFTWARE
In relation to the Software referred to in clause 1.1:
2.1
If it is determined by any independent tribunal of fact or law, or if it is agreed
between the parties to a dispute, that an infringement of Intellectual Property
Rights has occurred, and this infringement has any effect on the right of the
State to use any item of the Products or Software (“Offending Item”), then the
Supplier must:
2.1.1
obtain for the State the right to continue using the Offending Item;
2.1.2
modify or replace the Offending Item (without detracting from its overall
performance) so as to avoid the infringement, and compensate the
State for the amount of any direct loss or damage sustained or incurred
by the State during or as a result of such modification or replacement; or
2.1.3
if the solutions in either of the two preceding paragraphs cannot be
achieved on reasonable terms the Supplier must:
(a)
remove any Product which constitutes or incorporates the
Offending Item from the State’s premises;
(b)
refund the moneys paid for the offending item and any Product or
Software which can only be used for the State’s purposes in
conjunction with the Offending Item;
Page 2
2.1.4
2.2
(c)
terminate and cease to charge for the provision of Services in
respect of the Product which constitutes or incorporates the
Offending Item; and
(d)
(except in the case contemplated in the following sub-clause) pay
to the State the amount of any direct loss or damage sustained
as a result of the unavailability of the offending item, provided that
the State, in its sole discretion, may determine that it is necessary
to retain and continue to use the Offending Item and any
payments required to be made to a third party as a consequence
of this action must be reimbursed by the Supplier to the State.
If the Offending Item is Software for which a Licence was provided by, or
obtained for, the State by the Supplier, it will be presumed unless the
State can demonstrate otherwise that the Supplier cannot on
reasonable terms obtain rights to use, or modify or replace the
Offending Item so as to avoid infringement of Intellectual Property
Rights.
For the purposes of this clause, “infringement” includes unauthorised acts
which would, but for the operation of the Section 163 of the Patents Act 1990
(Cth), Section 96 of the Designs Act 2003 (Cth) and Section 183 of the
Copyright Act 1968 (Cth) constitute an infringement.
Page 1
SCHEDULE 29
1.
GENERAL
1.1
Without limiting the application of any other clause of this Agreement, the
Supplier must license to the State and a Customer free of charge the
Intellectual Property Rights in any documentation, manual or other work
(“Works”) that does not otherwise vest in the State or a Customer under this
Agreement, to do any act comprised in those Intellectual Property Rights and
for any purpose in relation to the operation and management of any Product
or Service purchased under this Agreement:
1.1.1
if this Agreement is terminated prior to the completion of any Services
and the State or a Customer requires that Work for the purpose of
completing the Services; or
1.1.2
if the State or a Customer requires that Work for the continued
operation, maintenance or support of the Product.
SCHEDULE 30
MANAGEMENT AND COORDINATION OF A
SIGNIFICANT ICT INCIDENT OR ICT FAILURE
1.
PURPOSE
This Schedule:
2.
1.1
sets out the requirements for reporting, management and coordination of ICT
incidents that have been deemed to be either a Significant ICT Incident or an
ICT Failure;
1.2
specifies the roles and responsibilities of the Parties in relation to procedures
for the reporting, management, communication and escalation of a Significant
ICT Incident or an ICT Failure or the threat of a Significant ICT Incident or an
ICT Failure;
1.3
does not operate to vary the provisions of this Agreement concerning the
substantive rights and obligations of the Parties in relation to the provision of
Deliverables or any Service Levels; and.
1.4
should be read in conjunction with the State Emergency Management Plan,
ICT Support Plan, ISMF Standard 140 and all supporting documents.
DEFINITIONS
In this Schedule:
2.1
“Chief Information Officer” means the person undertaking the role of, or
otherwise acting as the Chief Information Officer to the South Australian
Government;
2.2
“Control Agency” means a control agency as defined under the Emergency
Management Act, 2004;
2.3
“Department” means the Department of the Premier and Cabinet;
2.4
“Emergency” means an emergency as defined under the Emergency
Management Act, 2004;
2.5
“ICT Failure” has the meaning ascribed to that term in the ICT Support Plan;
2.6
“ICT Support Plan” means a plan of that title, a copy of which may be
accessed at http://digital.sa.gov.au/resources/topic/securing-resilience or
such other website notified by the State from time to time;
2.7
“Incident Management Team” is the ‘incident management team’ referred to
in the ICT Support Plan;
2.8
“ISMF Standard 140” means the standard of that title, a copy of which may
be accessed at Security - Information Security Management Framework or
such other website notified by the State from time to time;
Page - 1
3.
2.9
“Office for Digital Government” means the administrative unit within the
Department;
2.10
“Significant ICT Incident” has the meaning ascribed to that term in the ICT
Support Plan;
2.11
“State Emergency Management Plan” means a plan of that title, a copy of
which may be accessed at http://www.safecom.sa.gov.au/ or such other
website notified by the State from time to time.
OFFICE FOR DIGITAL GOVERNMENT AS CONTROL AGENCY
3.1
In accordance with the State Emergency Management Plan, the Department
is the Control Agency for ICT Failure under the South Australian
Government’s emergency management arrangements. The Office for Digital
Government fulfils the role of the Control Agency for ICT Failure on behalf of
the Department. When an ICT Failure, or threat of ICT Failure, occurs, the
Office for Digital Government is responsible for the taking control of the
response. Authority for control carries with it the responsibility which includes
tasking and coordinating other organisations in accordance with the needs of
a situation.
3.2
The Chief Information Officer is tasked with discharging all responsibilities
required of the Control Agency as detailed in the State Emergency
Management Plan. The Chief Information Officer can, without the need of a
declaration under the Emergency Management Act 2004, undertake response
and recovery operations as detailed in the ICT Support Plan and all supporting
documents.
3.3
The response and recovery activities of the Office for Digital Government will
take in relation to a cyber security event or cyber security incident is entirely
dependent on the severity of the event or incident. The Office for Digital
Government adopts a three-tiered response severity system being:
1.
2.
3.
4.
ICT/cyber security incidents (least severe);
Significant ICT Incidents; and
ICT Failure (most severe).
CONTROL AND COORDINATION OF INCIDENTS AND EVENTS
4.1
The Office for Digital Government will assess information relating to an
incident or event; determine its severity, potential impact and likely duration.
This assessment will be used to determine the response actions required and,
where there is a need to do so, coordinate State Agencies, South Australian
Government suppliers and other stakeholder’s responses to the incident or
event.
Establishment of Internal Policies and Procedures
4.2
The Supplier must, must by the date which is 90 days of the Effective Date,
establish internal policies and procedures for identifying and managing the
impact of events or incidents in accordance with the ISMF and ICT Support
Plan as they apply to this Agreement. The State may, on giving reasonable
notice to the Supplier, review the procedures established by the Supplier in
accordance with this clause.
Reporting of Events and Incidents
4.3
If the Supplier becomes aware of a suspected cyber security event or a cyber
security incident, the Supplier must as soon as possible report the details of
such an event or incident as contemplated by ISMF Standard 140.
4.4
Reports must be made to the ‘Watch Desk’ or ‘Watch Desk duty officer’ (as
appropriate) specified in Appendix A to this Schedule.
Escalation, Coordination and Review
4.5
Upon receiving an ICT event or incident report, the Office for Digital
Government may deem it necessary to declare a Significant ICT Incident or
ICT Failure. The decision to escalate will be made by the Chief Information
Officer in consultation with relevant stakeholders.
4.6
The Chief Information Officer can, without the need of a declaration under the
Emergency Management Act 2004, undertake response and recovery
operations as detailed in the ICT Support Plan and all supporting documents.
4.7
At the request of the State, the Supplier must;
4.7.1
work with the Office for Digital Government and the other South
Australian Government service providers to coordinate a joint
response to a Significant ICT Incident or ICT Failure;
4.7.2
participate in an Incident Management Team; and
4.7.3
attend post incident review meetings with the Office for Digital
Government, the Incident Management Team, and other South
Australian Government service providers.
Page 1
SCHEDULE 31
TERMINATION FOR CONVENIENCE COSTS
1.1
This Schedule 31 applies only where the State or a Customer (as the case
may be) has terminated for convenience a Purchasing Agreement or
Customer Agreement under which Services are still being provided.
1.2
If this Schedule applies, then the Supplier’s termination for convenience
costs must be calculated or determined as at the effective date of
termination or cancellation (i.e. when the relevant notice period expires).
1.3
In relation to each Customer Agreement that is terminated, the termination
for convenience costs comprise:
1.3.1
subject to clause 1.7 of this Schedule 31, the aggregate of all
reasonable costs and expenses incurred (net of all benefits
received or to be received) by the Supplier as a direct
consequence of the termination of all or part of, a contract for or in
connection with the supply of Services relating to the Customer
Agreement, where such costs were incurred or such termination
occurred as a direct consequence of the termination or
cancellation, but only to the extent that such costs and expenses
are substantiated and only to the extent that such costs and
expenses could not have been avoided or mitigated by reasonable
steps on the part of the Supplier;
1.3.2
all amounts due and payable by Customers under Customer
Agreements for Services provided by the Supplier to Customers
prior to the date of termination which have not been invoiced or
paid;
less
1.3.3
1.4
any amounts payable by the Supplier to the State under or in
connection with Services ordered under a Customer Agreement
(whether as a consequence of the termination of a Customer
Agreement or otherwise) which, remain unpaid.
For the purpose of agreeing on or determining the amount of the Supplier’s
termination for convenience costs, the Supplier must provide the State with:
1.4.1
a statement containing the amount of the Supplier’s termination for
convenience costs calculated in accordance with clause 1.3 of this
Schedule 31, and
Page 2
1.4.2
any supporting evidence the State reasonably requires to satisfy
itself as to the accuracy of the amount,
within thirty (30) days after the State gives a notice for termination for
convenience.
1.5
The Parties must then seek to promptly agree the amount of the Supplier’s
termination for convenience costs calculated in accordance with this
Schedule 31.
1.6
Except as set out in this Schedule 31, no other costs or fees are payable to
the Supplier for termination for convenience. Any amounts payable under
this Schedule are the Supplier’s sole remedy for termination for
convenience of the whole or part of a Purchasing Agreement or Customer
Agreement.
1.7
The Parties agree that the Supplier’s cost associated with establishing and
maintaining a Service Centre in Adelaide shall not be included in
determining the Supplier’s reasonable costs and expenses as
contemplated by clause 1.3.1 of this schedule 31.
SCHEDULE 32
NAME OF SUB-CONTRACTOR
NATURE
OF
BUSINESS
TO
BE
SUBCONTRACTED
ARID LAND COMMUNICATIONS PTY LTD
Regional Voice & Data Support
77 Commercial Road Pt Augusta SA 5700
Phone: 8641 2727
ABN 13 098 130 093
D & H RODDA PTY. LIMITED trading as
Yorke Communications
18 Olive Parade Kadina SA 5554
Phone: 8821 2322
ABN 38 061 785 500
GREEN TRIANGLE ELECTRONICS PTY. LTD.
169-171 Commercial Street West
Mount Gambier SA 5290
Phone: 8724 2222
ABN 43 008 187 497
TELELINK BUSINESS SYSTEMS PTY LTD
CBD & Regional Voice & Data Support
35 Kensington Road Rose Park SA 5067
Phone: 8139 0900
ABN 30 050 795 885
B.J.M. ENGINEERING SERVICES PTY. LTD.
Voice & Cable Support
112 Rundle Street Kent Town SA 5067
Phone: 8362 7000
ABN 48 008 279 801
Page - 1
WIRED 4 COMMS PTY LTD
Steadfast House 239 Magill Rd Maylands 5069
Phone: 1300 947 334
7 Tennyson Terrace Port Lincoln SA 5606
Phone: 0429 577 279
ABN 87 136 683 228
J & L MCINNES TELECOMMUNICATIONS CBD & Regional Voice & Data Support
CABLERS PTY LTD AS trustee for J & L
McInnes Trust
17 Monaco Court Aberfoyle Park 5159
Phone: 0439 805 633
ABN:19 720 434 123
CHIP COMMUNICATIONS (SA) PTY LTD
4 DaCosta Avenue Prospect 5082
Phone: 0409 747 337
ABN 25 082 181 673
ADELAIDE PABX SERVICE PTY LTD
35 Margaret Avenue West Croydon 5008
Phone: 0410 413 590
ABN 72 100 64 2993
BMA SYSTEMS PTY LTD
24 Kay Ave Berri SA 5343
Phone: 0418808042
ABN 49 168 121 971
ALLSTATE COMMUNICATIONS PTY LTD
279 Berkshire Rd Whyalla Norrie SA 5608
Phone: 08 8644 1328
ABN 97 116 440 978
Page - 2
ANDRACOM PTY LTD
92 Price Avenue Clapham SA 5062
Phone: 0458 092 392
ACN 145 072 304
C FRICKER & MJ FRICKER T/A MJ & C Regional Voice & Data Support
FRICKER
PO Box 333 Ceduna SA 5690
Phone: 0427 253 077
ABN 29 339 056 386
DIMETRO TRADING PTY LTD
Lv4 150 Albert Rd South Melbourne Vic 3205
Specialised Voice recording Application
Provider & Support
Phone: 0411 514 905
ABN 19 103 124 536
CENTURY YUASA BATTERIES PTY LTD
Back up Battery Supplier & Support
37 Cobalt St Carole Park Qld 4300
Phone 1300362287
ABN 66 009 685 232 1
1
Page - 3
CABINET ADMINISTRATIVE INSTRUCTION 1/89, ALSO KNOWN AS THE
INFORMATION PRIVACY PRINCIPLES (IPPS) INSTRUCTION, AND PREMIER
AND CABINET CIRCULAR 12, AS AMENDED BY CABINET 18 MAY 2009
Government of South Australia
Cabinet Administrative Instruction No.1 of 1989
(Re-issued 30 July 1992 and 18 May 2009)
PART 1
PRELIMINARY
Short Title
1.
This Instruction may be called the "Information Privacy Principles Instruction".
Commencement and Application
2.
(1)
This Instruction will come into effect on 18 May 2009.
(2)
Subject to any contrary determination by Cabinet, this Instruction shall
apply to "the public sector agencies" as that expression is defined in
Section 3(1) of the Public Sector Management Act 1995.
(3)
This Instruction shall not apply to an agency that appears in the attached
schedule.
Interpretation
3.
(1)
In this Instruction"agency" means a public sector agency that falls within the scope of
application of this Instruction pursuant to the provisions of Clause 2(2).
"the Committee" means the Privacy Committee of South Australia
constituted by Proclamation.
“contracted service provider” means a third party that enters into a
contract with an agency to provide goods or services required by an
agency for its operations.
“contract for service” means that contract between the contracted service
provider and the agency.
"personal information" means information or an opinion, whether true or
not, relating to a natural person or the affairs of a natural person whose
1
identity is apparent, or can reasonably be ascertained, from the
information or opinion.
"principal officer" means in relation to an agency:
(a)
the person holding, or performing duties of, the Office of Chief
Executive Officer of the agency;
(b)
if the Commissioner for Public Employment declares an office to be
the principal office in respect of the agency - the person holding, or
performing the duties of, that office; or
(c)
in any other case - the person who constitutes that agency or, if the
agency is constituted by two or more persons, the person who is
entitled to preside at any meeting of the agency at which the person
is present.
"the Principles" means the Information Privacy Principles established
under Clause 4 of this Instruction.
"record-subject" means a person to whom personal information relates.
(2)
A reference to any legislation, regulation or statutory instrument in this
Instruction shall be deemed to include any amendment, repeal or
substitution thereof.
(3)
A reference to a person, including a body corporate, in this Instruction
shall be deemed to include that person's successors.
PART II
INFORMATION PRIVACY PRINCIPLES
Principles
4.
The principal officer of each agency shall ensure that the following Principles
are implemented, maintained and observed for and in respect of all personal
information for which his or her agency is responsible.
Collection of Personal Information
(1)
Personal information should be not collected by unlawful or unfair means,
nor should it be collected unnecessarily.
(2)
An agency that collects personal information should take reasonable
steps to ensure that, before it collects it or, if that is not practicable, as
soon as practicable after it collects it, the record-subject is told:
(a)
the purpose for which the information is being collected (the
"purpose of collection"), unless that purpose is obvious;
2
(3)
(b)
if the collection of the information is authorised or required by or
under law - that the collection of the information is so authorised or
required; and
(c)
in general terms, of its usual practices with respect to disclosure of
personal information of the kind collected.
An agency should not collect personal information that is inaccurate or,
having regard to the purpose of collection, is irrelevant, out of date,
incomplete or excessively personal.
Storage of Personal Information
(4)
An agency should take such steps as are, in the circumstances,
reasonable to ensure that personal information in its possession or under
its control is securely stored and is not misused.
Access to Records of Personal Information
(5)
Where an agency has in its possession or under its control records of
personal information, the record-subject should be entitled to have
access to those records in accordance with the Freedom of Information
Act 1991.
Correction of Personal Information
(6)
An agency that has in its possession or under its control records of
personal information about another person should correct it so far as it is
inaccurate or, having regard to the purpose of collection or to a purpose
that is incidental to or connected with that purpose, incomplete,
irrelevant, out of date, or where it would give a misleading impression in
accordance with the Freedom of Information Act 1991.
Use of Personal Information
(7)
Personal information should not be used except for a purpose to which it
is relevant.
(8)
Personal information should not be used by an agency for a purpose that
is not the purpose of collection or a purpose incidental to or connected
with that purpose unless:
(a)
the record-subject has expressly or impliedly consented to the use;
(b)
the agency using the information believes on reasonable grounds
that the use is necessary to prevent or lessen a serious and
imminent threat to the life or health of the record-subject or of some
other person;
3
(9)
(c)
the use is required by or under law; or
(d)
the use for that other purpose is reasonably necessary for the
enforcement of the criminal law or of a law imposing a pecuniary
penalty or for the protection of the public revenue or for the
protection of the interests of the government, statutory authority or
statutory office-holder as an employer.
An agency that uses personal information should take reasonable steps
to ensure that, having regard to the purpose for which the information is
being used, the information is accurate, complete and up to date.
Disclosure of Personal Information
(10) An agency should not disclose personal information about some other
person to a third person unless:
(a)
the record-subject has expressly or impliedly consented to the
disclosure;
(b)
the person disclosing the information believes on reasonable
grounds that the disclosure is necessary to prevent or lessen a
serious and imminent threat to the life or health of the recordsubject or of some other person;
(c)
the disclosure is required or authorised by or under law; or
(d)
the disclosure is reasonably necessary for the enforcement of the
criminal law, or of a law imposing a pecuniary penalty or for the
protection of the public revenue or for the protection of the interests
of the government, statutory authority or statutory office-holder as
an employer.
Acts and Practices of Agency and Contracted Service Provider
5.
For the purposes of this Instruction(a)
an act done or practice engaged in by, or personal information disclosed
to, a person employed by, or in the service of, an agency in the
performance of the duties of the person's employment shall be deemed
to have been done or engaged in by, or disclosed to, the agency;
(b)
an act done or practice engaged in by, or personal information disclosed
to, a person on behalf of, or for the purposes of the activities of, an
unincorporated body, being a board, council, committee, subcommittee
or other body established by, or in accordance with, an enactment for the
purpose of assisting, or performing functions in connection with, an
agency, shall be deemed to have been done or engaged in by, or
disclosed to, the agency.
4
(c)
subject to clause 5(A), an act done or a practice engaged in by, or
personal information disclosed to, a person employed by, or in the
service of, a person or organisation providing services to an agency
under a contract for services for the purpose of or in the course of
performance of that contract shall be deemed to have been done or
engaged in by, or disclosed to, the agency.
5(A) A contract for service, which will necessitate the disclosure of personal
information to a contracted service provider, must include conditions to
ensure that these Principles are complied with as if the Contracted
Service Provider were part of the agency and must include provisions
that enable audit and verification of compliance with these obligations.
Agencies to comply with Principles
6.
An agency shall not do an act or engage in a practice that is in breach of or is
a contravention of the Principles.
Collecting of Personal Information
7.
For the purposes of the Principles, personal information shall be taken to be
collected by an agency from a person if the person provides that information to
the agency in response to a request by the agency for that information or for a
kind of information in which that information is included.
PART III
COMPLIANCE WITH PRINCIPLES
8.
The Committee may at any time on its own initiative appoint a person (whether
or not that person is a public employee) or the Commissioner for Public
Employment to investigate or assist in the investigation of the nature and
extent of compliance of an agency with the Principles and to furnish a report to
the Committee accordingly.
Reporting Procedures Pursuant to this Instruction
9.
Each principal officer shall furnish to the Committee such information as the
Committee requires and shall comply with any requirements determined by the
Committee concerning the furnishings of that information including:
(a)
the action taken to ensure that the Principles are implemented,
maintained and observed in the agency for which he or she is
responsible;
(b)
the name and designation of each officer with authority to ensure that the
Principles are so implemented, maintained and observed;
5
(c)
the result of any investigation and report, under Clause 8, in relation to
the agency for which he or she is responsible and, where applicable, any
remedial action taken or proposed to be taken in consequence.
Agencies Acting Singly or in Combination
10.
This Instruction and the Principles shall apply to the collection, storage, access
to records, correction, use and disclosure in respect of personal information
whether that personal information is contained in a record in the sole
possession or under the sole control of an agency or is contained in a record
in the joint or under the joint control of any number of agencies.
SCHEDULE: CLAUSE 2 (3)
AGENCIES TO WHICH THIS INSTRUCTION DOES NOT APPLY
South Australian Asset Management Corporation
Motor Accident Commission (formerly State Government Insurance Commission)
WorkCover Corporation of South Australia
6
Version: 11.6.2009
South Australia
Privacy Committee of South Australia
1 Establishment and procedures of Privacy Committee of South Australia
(1)
My Government will establish a committee to be known as the Privacy Committee of
South Australia.
(2)
The Committee will consist of six members appointed by the Minister as follows:
(a)
three will be chosen by the Minister, and of these one must be a person who is
not a public sector employee (within the meaning of the Public Sector
Management Act 1995 as amended or substituted from time to time) and one
must be a person with expertise in information and records management;
(b)
one will be appointed on the nomination of the Attorney-General;
(c)
one will be appointed on the nomination of the Minister responsible for the
administration of the Health Care Act 2008 (as amended or substituted from
time to time); and
(d)
one will be appointed on the nomination of the Commissioner for Public
Employment (and, for the purposes of this paragraph, the reference to the
Commissioner will, if the title of the Commissioner is altered, be read as a
reference to the Commissioner under his or her new title).
(2aa) At least 2 members of the Committee must be women and at least 2 must be men.
(2a) One of the persons appointed under subclause (2)(a) will be appointed (on the
nomination of the Minister) to be the presiding member.
(3)
A member will be appointed for a term not exceeding four years.
(3a) Where a member is appointed for a term of less than four years, the Minister may,
with the consent of the member, extend the term of the appointment for a period
ending on or before the fourth anniversary of the day on which the appointment took
effect.
(4)
The office of a member becomes vacant if the member
(a)
dies;
(b)
completes a term of office and is not reappointed;
(c)
resigns by written notice to the Minister; or
(d)
is removed from office by the Governor on the ground of
(i)
mental or physical incapacity to carry out official duties
satisfactorily;
(ii)
neglect of duty;
(iii) disclosure of information by the member contrary to clause 3(2); or
(iv) misconduct.
1
Privacy Committee of South Australia—11.6.2009
(5)
(6)
Subject to the following, the Committee may determine its own procedures:
(a)
a meeting of the Committee will be chaired by the presiding member or, in
his or her absence, by a member chosen by those present;
(b)
subject to paragraph (c), the Committee may act notwithstanding vacancies in
its membership;
(c)
four members constitute a quorum for a meeting of the Committee;
(d)
a decision in which a majority of the members present at a meeting concur is
a decision of the Committee but if the members are equally divided the
person presiding at the meeting will have a casting vote;
(e)
a member who is unable to attend a meeting of the Committee may, with the
approval of the presiding member, be represented for voting and all other
purposes at the meeting by his or her nominee;
(g)
the Committee must keep minutes of its proceedings.
In performing its functions the Committee may consult any person and may establish
subcommittees of at least two of its members to assist and advise it.
2 Functions of the Committee
The Committee will have the following functions:
(a)
to advise the Minister as to the need for, or desirability of, legislation or
administrative action to protect individual privacy and for that purpose to
keep itself informed as to developments in relation to the protection of
individual privacy in other jurisdictions;
(b)
to make recommendations to the Government or to any person or body as to
the measures that should be taken by the Government or that person or body
to improve its protection of individual privacy;
(c)
to make publicly available information as to methods of protecting individual
privacy and measures that can be taken to improve existing protection;
(d)
to keep itself informed as to the extent to which the Administrative Scheme of
Information Privacy Principles are being implemented;
(g)
to refer written complaints concerning violations of individual privacy
received by it (other than complaints from employees of the Crown, or
agencies or instrumentalities of the Crown, in relation to their employment) to
the appropriate authority;
(h)
such other functions as are determined by the Minister.
3 Prohibition against disclosure of information
(2)
2
A member of the Committee must not disclose any information acquired by the
member by virtue of his or her membership of the Committee except
(a)
in the course of performing duties and functions as a member of the
Committee; or
(b)
as required or authorized by law.
11.6.2009—Privacy Committee of South Australia
4 Exemptions
(1)
The Committee may exempt a person or body from one or more of the Information
Privacy Principles on such conditions as the Committee thinks fit.
4A Annual report
(1)
The Committee must, on or before 30 September in each year, prepare and present to
the Minister a report on its activities during the preceding financial year.
(2)
The report must include details of any exemptions granted under clause 4 during the
year to which the report relates.
(3)
The Minister must, within 12 sitting days after receipt of a report under this section,
cause copies of the report to be laid before each House of Parliament.
5 Interpretation
In this proclamation, unless the contrary intention appears
Information Privacy Principles means the principles set out in Part II of Cabinet
Administrative Instruction No. 1 of 1989 entitled "Information Privacy Principles
Instruction";
Minister means the Minister who is, for the time being, responsible for the
Committee.
3
Privacy Committee of South Australia—11.6.2009
Legislative history
Notes
•
For further information relating to the Act and subordinate legislation made under the
Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.
Principal proclamation and variations
New entries appear in bold.
Reference
Commencement
—
Gazette 6.7.1989 p6
6.7.1989
—
Gazette 30.7.1992 p720
30.7.1992
—
Gazette 25.5.2000 p2628
25.5.2000
—
Gazette 17.5.2001 p1772
17.5.2001
—
Gazette 11.6.2009 p2728
11.6.2009: cl 2
Provisions varied
New entries appear in bold.
Entries that relate to provisions that have been deleted appear in italics.
Provision
How varied
Commencement
cl 1
cl 1(2)
substituted by 30.7.1992 p720 cl 1
30.7.1992
substituted by 25.5.2000 p2628 para (a)
25.5.2000
varied by 17.5.2001 p1772 paras (a), (b)
17.5.2001
varied by 11.6.2009 p2728 cl 4(1)—(3)
11.6.2009
cl 1(2aa)
inserted by 11.6.2009 p2728 cl 4(4)
11.6.2009
cl 1(2a)
inserted by 30.7.1992 p720 cl 1
30.7.1992
substituted by 25.5.2000 p2628 para (a)
25.5.2000
cl 1(3)
varied by 30.7.1992 p720 cl 2
30.7.1992
cl 1(3a)
inserted by 17.5.2001 p1772 para (c)
17.5.2001
cl 1(4)
varied by 11.6.2009 p2728 cl 4(5)
11.6.2009
cl 1(5)
varied by 30.7.1992 p720 cl 3
30.7.1992
varied by 25.5.2000 p2628 para (b)
25.5.2000
cl 2
varied by 11.6.2009 p2728 cl 4(6)
11.6.2009
(f) deleted by 11.6.2009 p2728 cl 4(7)
11.6.2009
varied by 30.7.1992 p720 cll 4, 5
30.7.1992
(e) and (f) deleted by 30.7.1992 p720 cl 6
30.7.1992
substituted by 30.7.1992 p720 cl 7
30.7.1992
varied by 25.5.2000 p2628 para (c)
25.5.2000
deleted by 11.6.2009 p2728 cl 5
11.6.2009
30.7.1992
cl 3
cl 3(1)
cl 4
4
11.6.2009—Privacy Committee of South Australia
cl 4(2)
deleted by 11.6.2009 p2728 cl 6
11.6.2009
cl 4A
11.6.2009
cl 5 heading
11.6.2009
cl 5
30.7.1992
deleted by 25.5.2000 p2628 para (d)
25.5.2000
public employee
5
UNCLASSIFIED
Transition Management Methodology
Prepared by:
Version:
Date:
ICT Transition
6.1
16 November 2009
Approver’s name:
Mark Kelly
Title:
Manager, Transition Program
Signature: Original Signed
Date approved: 16 November 2009
UNCLASSIFIED (official use only)
Page 1 of 8
UNCLASSIFIED
Table of contents
TABLE OF CONTENTS ................................................................................. 3
1.
DOCUMENT DESCRIPTION ............................................................... 4
1.1
1.2
1.3
Purpose of the Document ................................................................... 4
Audience ............................................................................................ 4
Authorisation ...................................................................................... 4
2.
TRANSITION MANAGEMENT METHODOLOGY ............................... 4
3.
TRANSITION GOVERNANCE............................................................. 5
3.1
3.2
4.
MANAGEMENT OF TRANSITION ACTIVITY ..................................... 5
4.1
4.2
4.3
4.4
4.5
4.6
4.7
5.
Cabinet............................................................................................... 5
Ministerial Responsibility .................................................................... 5
Transition Project Board (Coordination Committee)............................ 5
Transition Project Manager................................................................. 6
New Service Provider’s Transition Project Manager ........................... 6
Disengaging Provider’s Transition Project Manager ........................... 6
Master Transition Plan [MTP] ............................................................. 7
Staged Approach................................................................................ 7
Transition Program ............................................................................. 8
STANDARD TRANSITION PROCESSES ........................................... 8
Page 3 of 8
UNCLASSIFIED
1.
DOCUMENT DESCRIPTION
1.1
Purpose of the Document
This document is provided to Service Providers during procurement
negotiations and is referenced in the Purchasing Agreement [PA] in relation to
the SA Government’s transition requirements.
The Government will manage the transition process with involvement from
both new contractor and the incumbent service provider (where applicable).
The Government’s principal objective in Transition is:
“to ensure ongoing business continuity and a stable service environment
during establishment of the new arrangements and provide for the continued
delivery of the Government’s ICT services during the transition period.”
The ICT Transition (Across Government) Program is responsible for service
continuity of the ICT infrastructure during transition.
The Agencies are responsible for business continuity of their systems and
processes.
1.2
Audience
The audience for this document is the ICT Transition Project Board and
teams, stakeholders and other interested parties to the ICT Transition
Program.
1.3
Authorisation
This document requires approval of the Manager, ICT Transition (Across
Government) Program.
The Manager, ICT Transition (Across Government) Program will maintain this
document as a reference for all Transition projects under the Program.
2.
TRANSITION MANAGEMENT METHODOLOGY
•
•
•
•
•
•
Each contract [PA] implementation will be managed through a
staged transition process.
Oversight of all transition processes and activities will remain the
responsibility of the South Australian Government and will be
managed through the Government’s Transition Governance
structure.
A Transition Project Board (known as a ‘Coordination Committee’)
will be established to provide control and direction for the
implementation of new contract arrangements.
The Government will assign a Transition Project Manager to
manage each project and report progress to the Transition Project
Coordination Committee.
The incoming service provider will nominate a Transition Project
Manager to work with the Government’s Transition Project
Manager. The Supplier’s Project Manager will be required to work
with the State to provide input to the Master Transition Plan [MTP].
Incumbent service providers will be requested to nominate a
Disengagement Project Manager to work with the incoming service
provider’s Transition Project Manager and the Government’s
Transition Project Manager (where applicable).
Page 4 of 8
UNCLASSIFIED
3.
TRANSITION GOVERNANCE
The Government has implemented governance arrangements to manage the
significant risk and opportunity to government service delivery that will arise
during the transition to new service arrangements.
It is noted that the Government may need to be directive on some aspects
during the Transition process. These aspects may include timing, staging,
operational and/or specific Agency or other Service Provider requirements.
The following governance structure is designed to support and direct all
across-government transition activity.
3.1
Cabinet
The ultimate responsibility for transition activity rests with the South Australian
Cabinet supported by the Major Projects and Infrastructure Cabinet
Committee.
3.2
Ministerial Responsibility
The Minister for Transport, Energy and Infrastructure (through the
Department for Transport, Energy and Infrastructure) is responsible for
facilitating leadership and collaboration in across-government ICT services,
including the transition to new ICT service arrangements.
4.
MANAGEMENT OF TRANSITION ACTIVITY
Each procurement approach may result in multiple contracts. Each contract
(PA) will be implemented via a transition project. Where a service provider is
successful in winning multiple contracts within a procurement approach the
Government may manage the implementation of the contracts under a single
project.
4.1
Transition Project Board (Coordination Committee)
A Transition Project Coordination Committee will be established to provide
control and direction for the transition of government service operations into
any new service arrangement.
The Transition Project Coordination Committee will guide the development of
the MTP and its approval.
The Transition Project Coordination Committee will comprise the following
representatives:
•
Government Transition Representative and Chairperson – The
Government will nominate a senior representative to the Transition
Project Coordination Committee who will Chair meetings and
ensure integration with other transition and across-government
activity. The Chair will balance Government and service provider
considerations and guide the implementation of new service
arrangements with advice from other members of the Coordination
Committee. The Chair may escalate issues, risks and approvals
through the Transition Governance structure as required;
•
Incoming Service Provider Representative – The incoming
service provider will nominate a senior officer within their
organisation with the authority to ensure appropriate resources are
applied and the quality of services provided by the incoming
service provider during transition;
Page 5 of 8
UNCLASSIFIED
•
Disengaging Service Provider Representative – Where an
incumbent service provider exists the incumbent service provider
will nominate a senior officer within their organisation with the
authority to ensure appropriate resources are applied and the
quality of services provided by the incumbent service provider in
disengagement; and
•
Government Portfolio Representative(s) – The South Australian
Government will, at its discretion, nominate one or more senior
Portfolio officers responsible for the operations of a Portfolio or
Agency to the Project Board to advise on Portfolio specific priorities
and considerations.
4.2
Transition Project Manager
The Government will appoint a Transition Project Manager to manage each
transition project. The Transition Project Manager will work closely with the
incoming service provider’s Transition Project Manager; the incumbent
service provider’s Disengagement Project Manager and any government
operational or technical managers to co-ordinate and manage the transition
process.
The Government’s Transition Project Manager will report progress and seek
approval and direction from the Transition Project Coordination Committee.
4.3
New Service Provider’s Transition Project Manager
Each potential service provider has been asked, as part of the tendering
process, to commit to certain transition activities that will ensure the business
continuity of government. Amongst other things, the tender document
includes specific requirements for the design of a ‘Transition-in’ plan and the
nomination of key participants to be involved in the transition process.
The successful Respondent’s transition manager, Transition Project
Manager, will work with the Government’s Transition Project Manager and
lead the development and maintenance of a comprehensive and fully
documented transition plan [MTP] with consideration of whole of Government,
Agency and incumbent service provider requirements.
4.4
Disengaging Provider’s Transition Project Manager
Where an incumbent service provider exists the incumbent service provider
will be requested to nominate a Disengagement Project Manager to work with
the Government’s Transition Project Manager and incoming supplier’s
Transition Project Manager.
Page 6 of 8
UNCLASSIFIED
4.5
Master Transition Plan [MTP]
The MTP will normally be produced in two versions – the Draft MTP followed
by the final version of the MTP.
The MTP documents the activities, resources and timing required of the
Government, the incoming service provider and the incumbent service
provider to move to new service delivery arrangements.
Both the Draft MTP and final version of the MTP will be presented to the
Transition Project Coordination Committee for its endorsement.
The following illustration shows the key milestones in the development of the
Master Transition Plan [MTP].
Negotiations
Transition Planning
Transition In Plan
Provided by New Service Provider
Draft Master Transition Plan (MTP)
Endorsed by Project Board
Master Transition Plan (MTP)
Approved by the Project Board
Due Diligence
Detailed Planning With Agencies
All Previous Inputs Finalised
PA Signed
Agency Requirements
Customer Agreement Product Selection
Contract Requirements
Alignment With Other Transition Activities
Clarification Of Assumptions And Scope
Incumbent Supplier(s) Transition Out Plan
Detailed Planning With Incumbent Supplier(s)
Across Government Transition Requirements
New Service Provider’s Finalised Transition In Plan
Additional Information In Relation To State Infrastructure
The Government may choose an alternative approach to developing a full
MTP process (called a light touch) depending on its assessment of the level
of complexity and risk associated with the specific transition project.
4.6
Staged Approach
The Government may elect to transition to new arrangements on a Portfolio
by Portfolio or Agency by Agency basis, by region, by service segment or any
other manner deemed appropriate.
Page 7 of 8
UNCLASSIFIED
4.7
Transition Program
The Government will manage the transition project through the following ICT
Transition (Across Government) Program.
nterna Government Arrangements
Cabinet
Minister, DTEI
Chief Executive, DTEI
ICT Board
Co aborat ve Management Arrangements
Transition Project Board
5.
Manager, ICT Transition
(Across Government) Program
State Transition Project
Manager
Outgoing Supplier’s Project
Manager and Team
Incoming Supplier’s Project
Manager and Team
Portfolio Transition Managers
(PTMs)
Agency Migration Coordinators
(AMCs)
STANDARD TRANSITION PROCESSES
The Government will direct the incoming supplier to use the following
standard processes during the transition project to ensure consistency:
•
Risk and Issues Management classification processes
•
Reporting templates for Project Status Reports and risks and
issues
•
Joint project meetings for the Transition team and the supplier’s
project team (chaired by the State)
•
Communication and reporting processes
•
Change Management
•
Lessons learned
•
Project Close and signoff
These documents will be provided to the supplier during the transition start
up phase as part of the MTP.
It is expected that Suppliers will use their internal project management
processes within their organisation in relation to the management of the
transition project. However when engaging with the Government they will be
required to use the above project templates and processes.
Page 8 of 8

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