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24.2.2
After taking into account the factors set out above in respect of the relevant personnel,
the Service Provider must undertake a risk assessment and prepare a risk assessment
report, in a manner that the Service Provider considers appropriate, that:
(a)
determines whether any personnel pose an unacceptable risk to Vulnerable
Persons; and
(b)
proposes such action as is appropriate to protect Vulnerable Persons, such as:
(i)
not engaging, deploying or redeploying any personnel in relation to the
provision of the Additional Services, or any part of the provision of the
Additional Services;
(ii)
removing any personnel from working in any position or acting in any
capacity in relation to any part of the provision of the Additional Services
that involves working or having contact with Vulnerable Persons;
(iii)
making arrangements or imposing conditions in relation to any personnel’s
role in relation to the provision of the Additional Services, or any part of the
provision of the Additional Services, and, where relevant, any personnel’s
contact with Vulnerable Persons; and
(iv)
taking steps to protect the physical, psychological, or emotional well-being
of the Vulnerable Persons to whom the provision of the Additional Services
relates.
24.2.3
The Service Provider must provide a copy of the risk assessment report to the Entity
within 10 Business Days of completing it.
24.2.4
Notwithstanding the Service Provider’s determination about, and proposed action in
relation to, the personnel as specified in the risk assessment report, the Entity may, at
its absolute discretion, require the Service Provider to replace any personnel with an
alternative who is acceptable to the Entity.
25.
Anti-corruption
25.1
The Service Provider acknowledges that in providing the Services to the Entity under this Work
Order, it is a contracted service provider for the purposes of the National Anti-Corruption
Commission Act 2022 (Cth) (‘NACC Act’).
25.2
The Service Provider must comply with any reasonable request, policy, or direction issued by the
Entity and otherwise cooperate with the Entity in relation to any action taken by the Entity
required or authorised by the NACC Act.
25.3
This clause 25 survives expiry or termination of this Work Order.
26.
Public Interest Disclosure
The Service Provider must familiarise itself with the Public Interest Disclosure Act 2013 (Cth) and
acknowledges that public officials, including the Service Provider and the Service Provider’s
personnel, who suspect wrongdoing within the Commonwealth public sector may raise their
concerns under the Public Interest Disclosure Act 2013 (Cth). Information for disclosers is
available at: https://www.ombudsman.gov.au/Ourresponsibilities/making-a-disclosure.
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27.
Gifts and other inducements
The Service Provider must not provide gifts, payments or other inducements to or for the
personal benefit of any officer, employee, contractor or agent of the Entity.
28.
Notification of Significant Events
28.1
For the purposes of this clause, ‘Significant Event’ means:
28.1.1
any adverse comments or findings made by a court, commission, tribunal or other
statutory or professional body regarding the conduct or performance of the Service
Provider or its officers, employees, agents or Subcontractors that impacts or could be
reasonably perceived to impact on their professional capacity, capability, fitness or
reputation; or
28.1.2
any other significant matters, including the commencement of legal, regulatory or
disciplinary action involving the Service Provider or its officers, employees, agents or
Subcontractors, that may adversely impact on compliance with Commonwealth policy
and legislation or the Commonwealth’s reputation.
28.2
The Service Provider must immediately issue the Entity and the Entity’s Representative a Notice
on becoming aware of a Significant Event.
28.3
The Notice issued under clause 28.2 must provide a summary of the Significant Event, including
the date that it occurred and whether any Specified Personnel or other personnel engaged in
connection with the Additional Services were involved.
28.4
The Entity may notify the Service Provider in writing that an event is to be considered a
Significant Event for the purposes of this clause, and where this occurs the Service Provider must
issue a Notice under clause 28.2 in relation to the event within 3 Business Days of being notified
by the Entity.
28.5
Where reasonably requested by the Entity, the Service Provider must provide the Entity with any
additional information regarding the Significant Event within 3 Business Days of the request.
28.6
If requested by the Entity, the Service Provider must prepare a draft remediation plan and submit
that draft plan to the Entity’s Representative for approval within 10 Business Days of the request.
28.7
A draft remediation plan prepared by the Service Provider under clause 28.6 must include the
following information:
28.7.1
how the Service Provider will address the Significant Event in the context of the
Additional Services, including confirmation that the implementation of the remediation
plan will not in any way impact on the delivery of the Additional Services or compliance
by the Service Provider with its other obligations under this Work Order; and
28.7.2
how the Service Provider will ensure events similar to the Significant Event do not occur
again; and
28.7.3
any other matter reasonably requested by the Entity.
28.8
The Entity will review the draft remediation plan and either approve the draft remediation plan or
provide the Service Provider with the details of any changes that are required. The Service
Provider must make any changes to the draft remediation plan reasonably requested by the
Entity and resubmit the draft remediation plan to the Entity for approval within 3 Business Days of
the request unless a different timeframe is agreed in writing by the Entity. This clause 28.8 will
apply to any resubmitted draft remediation plan.
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28.9
Without limiting its other obligations under this Work Order, the Service Provider must comply
with the remediation plan as approved by the Entity. The Service Provider agrees to provide
reports and other information about the Service Provider’s progress in implementing the
remediation plan as reasonably requested by the Entity.
28.10
A failure by the Service Provider to comply with its obligations under this clause will be a material
breach of this Work Order. The Entity’s rights under this clause are in addition to and do not
otherwise limit any other rights the Entity may have under this Work Order. The performance by
the Service Provider of its obligations under this clause will be at no additional cost to the Entity.
29.
Compliance with the Commonwealth Supplier Code of Conduct
29.1
For the purposes of this clause, ‘Commonwealth Supplier Code of Conduct’ or ‘Code’ means the
Commonwealth Supplier Code of Conduct, as published on 1 July 2024, as updated from time to
time.
29.2
The Service Provider must comply with, and ensure that its officers, employees, agents and
subcontractors comply with, the Code in connection with the performance of this Work Order.
29.3
The Service Provider must:
29.3.1
periodically monitor and assess its, and its officers’, employees’, and agents’
compliance with the Code; and
29.3.2
on request from the Entity, promptly provide information regarding:
(a)
the policies, frameworks, or systems it has established to monitor and assess
compliance with the Code, and
(b)
the Service Provider’s compliance with clause 29.2.
29.4
The Service Provider must immediately issue the Entity and the Entity’s Representative a Notice
on becoming aware of any breach of clause 29.2. The Notice must include a summary of the
breach, the date that the breach occurred, and details of the personnel involved.
29.5
Where the Entity identifies a possible breach of clause 29.2, it may issue the Service Provider a
Notice, and the Service Provider must, within 3 Business Days of receiving the Notice, either:
29.5.1
where the Service Provider considers a breach has not occurred: advise the Entity that
there has not been a breach and provide information supporting that determination; or
29.5.2
where the Service Provider considers that a breach has occurred: issue a Notice under
clause 29.4 and otherwise comply with its obligations under this clause 29.
29.6
Notwithstanding clause 29.5, the Entity may notify the Service Provider in writing that it considers
that the Service Provider has breached clause 29.2, in which case the Service Provider must
issue a Notice under clause 29.4 and otherwise comply with its obligations under this clause 29.
29.7
A failure by the Service Provider to comply with its obligations under any part of this clause will
give rise to the right to terminate the Work Order for default, as per clause 68 of the Deed.
29.8
Nothing in this clause or the Code limits, reduces, or derogates from the Service Provider’s other
obligations under this Work Order. The Entity’s rights under this clause are in addition to and do
not otherwise limit any other rights the Entity may have under this Work Order. The performance
by the Service Provider of its obligations under this clause will be at no additional cost to the
Entity.
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29.9
The Service Provider agrees that the Entity or any other Commonwealth agency may take into
account the Service Provider’s compliance with the Code in any future approach to market or
procurement process.
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Annex A. Collateral Warranty Deed
COLLATERAL WARRANTY DEED
This deed poll is made at ………………………… on ……………………………..., …20XX
By:
[insert name and ACN]
Article I.
[insert address]
Article II.
(Consultant)
Article III.
and
[Service Provider Name]
ABN [XXXXXXX]
Article IV.
[Service Provider address]
Article V.
(Service Provider)
In favour of:
The Commonwealth of Australia, as represented by National Disability Insurance
Agency ABN 25 617 475 10 (Entity)
Context
1.
The Entity and the Service Provider have entered into the work order referred to as [insert] (Work
Order) for Additional Services under the Deed in relation to Property Services to the
Commonwealth (Deed).
2.
The Work Order includes Additional Terms, in accordance with clause 21.2(e) of the Deed.
3.
The Additional Terms require the Consultant to enter into this deed.
This deed poll provides
1.
Definitions
1.1
Work Order
Terms used in this deed which are defined in the Work Order and are not otherwise defined in
this deed, have the meanings given to them in the Work Order.
1.2
Defined terms
In this deed:
1.2.1
Deliverables means those deliverables set out in Item 5.
1.2.2
Work Order means the work order referred in respect of the Services described in Item
1.
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2.
Interpretation
2.1
Words and headings
In this deed, unless expressed to the contrary:
2.1.1
words denoting the singular include the plural and vice versa;
2.1.2
the word 'includes' in any form is not a word of limitation;
2.1.3
where a word or phrase is defined, another part of speech or grammatical form of that
word or phrase has a corresponding meaning;
2.1.4
headings and sub-headings are for ease of reference only and do not affect the
interpretation of this deed; and
2.1.5
no rule of construction applies to the disadvantage of the party preparing this deed on
the basis that it prepared or put forward this deed or any part of it.
2.2
Specific references
In this deed, unless expressed to the contrary, a reference to:
2.2.1
a gender includes all other genders;
2.2.2
any legislation (including subordinate legislation) is to that legislation as amended, re-
enacted or replaced and includes any subordinate legislation issued under it;
2.2.3
any document (such as a deed, agreement or other document) is to that document (or,
if required by the context, to a part of it) as amended, novated, substituted or
supplemented at any time;
2.2.4
writing includes writing in digital form;
2.2.5
a 'party' is to a party to this deed, and 'parties' has the corresponding meaning;
2.2.6
'A$', '$', 'AUD' or 'dollars' is a reference to Australian dollars;
2.2.7
a clause, schedule or attachment is a reference to a clause, schedule or attachment in
or to this deed;
2.2.8
any property or assets of a person includes the legal and beneficial interest of that
person of those assets or property, whether as owner, lessee or lessor, licensee or
licensor, trustee or beneficiary or otherwise;
2.2.9
a person includes a firm, partnership, joint venture, association, corporation,
government body or other body corporate;
2.2.10
a person includes the legal personal representatives, successors and permitted assigns
of that person, and in the case of a trustee, includes any substituted or additional
trustee; and
2.2.11
any body (Original Body) which no longer exists or has been reconstituted, renamed,
replaced or whose powers or functions have been removed or transferred to another
body or agency, is a reference to the body which most closely serves the purposes or
objects of the Original Body.
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3.
Duty of Care
3.1
Warranties
The Consultant:
3.1.1
warrants to the Entity that it will exercise the standard of skill, care and diligence in the
performance of the Services that would be expected of a professional provider of the
Services;
3.1.2
must:
(a)
prepare the Deliverables;
(b)
ensure that each Deliverable complies with the requirements of the Entity and are
carried out to the same standard of quality as required by the Entity's standards,
documentation or requirements (as provided to the Service Provider by the
Entity);
(c)
ensure that each Deliverable complies with all the Entity’s approvals and the
requirements of associated authorities; and
(d)
ensure that the Deliverables, will be fit for their intended purposes.
3.1.3
must exercise the utmost good faith in the best interests of the Entity and keep the
Entity fully and regularly informed about all matters affecting or relating to the Services.
3.1.4
The warranties provided in clause 3.1 are in addition to and do not derogate from any
warranty implied by law in respect of the Deliverables.
3.2
Non-compliance
If the Entity does not accept a Deliverable under the Work Order, the Consultant must fix any
non-compliance of the Deliverable within 15 Business Days and resubmit the Deliverables to the
Entity.
4.
Insurance
4.1
Professional indemnity
4.1.1
Without prejudice to its obligations under this deed, the Consultant must effect and
maintain professional indemnity insurance with a limit of indemnity of not less than $10
million in respect of any claim arising out of the liability of the Consultant in connection
with this deed.
4.1.2
The Consultant must maintain the insurance from the date of this deed for a period of
7 years.
4.2
Certificate of currency
Upon request, the Consultant must provide to the Entity a certificate demonstrating compliance
with this clause 4.
4.3
Survival
This clause 4 will survive termination or expiry of this deed.
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5.
Confidentiality
5.1
Keep Confidential
5.1.1
The parties must keep confidential and not disclose to any other person any documents
and any other information (in any form) regarding the Services contemplated by this
deed.
5.1.2
Any parties may disclose confidential information referred to in clause 5:
(a)
if that party obtains the prior written consent of the other parties;
(b)
is disclosed by Finance or an Entity to the responsible Minister;
(c)
is shared by Finance or the Entity within their organisation, or with another
Commonwealth Entity including the Covered Entities and Entities, where this
serves the legitimate interests of the Commonwealth;
(d)
is disclosed by Finance or an Entity in response to a request from a House or a
Committee of the Parliament of the Commonwealth, or from a State or Territory
Parliament or Assembly if the relevant Entity is a State or Territory body;
(e)
if that party is required by law or by a court;
(f)
as required by law; or
(g)
to the extent necessary to give effect to or to enforce any agreement to settle or
resolve all or any part of a dispute under this deed.
5.1.3
For the purposes of this clause ‘Entity Materials’ means any material brought into
existence as part, or for the purpose of, the Services contemplated by this deed, and
includes but is not limited to documents, equipment, information, or data stored by any
means.
5.1.4
Notwithstanding anything to the contrary in clause 38 of the Deed or this clause 5, any
Entity Materials provided to the Consultant that are marked ‘confidential’ must remain
confidential unless otherwise permitted by the Entity in writing.
5.1.5
If requested by the Entity, the Consultant must execute and deliver to the Entity, a deed
of confidentiality on terms substantially the same as those required by the Entity, within
the time required by the Entity in connection with the Consultant’s preparation of design
documentation and the Deliverables for the Design Document.
5.2
Survival
This clause 5 will survive termination or expiry of this deed.
6.
Assignment
Except as expressly contemplated by this deed, neither the Service Provider nor the Consultant
may assign or transfer any of its rights or obligations under this deed.
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7.
General
7.1
Entire agreement
This deed and the Work Order are the entire agreement between the parties in respect of the
Services and supersedes all previous agreements, proposals, representations, correspondence
and discussions in connection with the Services and Deliverables.
7.2
Legal Costs
Subject to the express provisions of this deed or any other document to the contrary, the parties
will pay their own legal costs in connection with the preparation and negotiation of this deed.
7.3
Governing law and jurisdiction
This deed is governed by the law applicable in the Australian Capital Territory.
7.4
Severability
A term or part of a term of this deed that is illegal or unenforceable may be severed from this
deed and the remaining terms or parts of the term of this deed continue in force.
7.5
Amendment
This deed may be amended only by another deed executed by all parties who may be affected by
the amendment.
7.6
Waiver
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the
right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent
another or further exercise of that or another right, power or remedy. A waiver of a right, power or
remedy must be in writing and signed by the party giving the waiver.
7.7
Notices
All notices, requests, demands, agreements or other communications to or by a party:
7.7.1
must be in writing;
7.7.2
must be signed by an authorised officer of the sender or its solicitors; and
will be taken to be duly given or made (in the case of delivery in person or by post or facsimile
transmission) when delivered, received or left at the address of the recipient shown in Schedule 1
or to any other address which it may have notified the sender, but if delivery or receipt is on a day
other than a Business Day or is later than 4pm (local time), it will be taken to have been duly
given or made at the commencement of business on the next day on which business is generally
carried on in that place.
7.8
Further action
Each party must use reasonable efforts to do all things necessary or desirable to give full effect to
this deed.
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Schedule 1
Details
Item 1.
Agreement
##insert
Item 2.
Service Provider's
Name:
##insert
Representative and Address for
service of Notices
Physical Address:
##insert
Contact:
##insert
E-mail:
##insert
Facsimile:
##insert
Item 3.
The Entity's Representative and
Name:
##insert
Address for service of Notices
Physical Address:
##insert
Contact:
##insert
E-mail:
##insert
Facsimile:
##insert
Item 4.
Consultant's Representative and Name:
##insert
Address for service of Notices
Physical Address:
##insert
Contact:
##insert
E-mail:
##insert
Facsimile:
##insert
Item 5.
Deliverables
##insert relevant Deliverables for the
Work Documents that are being
subcontracted to the Consultant.
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Annex B. Certificate of Practical Completion
FROM: Commonwealth of Australia represented by the National Disability Insurance Agency
TO: [insert name of Service Provider (ACN: [insert])]
Attention: [insert name of Service Provider’s Representative]
CERTIFICATE OF PRACTICAL COMPLETION
1.
Pursuant to clause 11.2 of the Additional Services to the Work Order dated [insert date] between
the Commonwealth of Australia represented by the National Disability Insurance Agency and
[insert name of Service Provider (ACN: [insert])], the Entity hereby confirms that it accepts
Practical Completion has been effected in accordance with the Work Order.
2.
The term Practical Completion has the meaning which is given to that term in the Work Order.
3.
The Entity hereby gives notice to the Service Provider to provide to the Entity a Defects
Rectification Plan accordance with clause 11.2.2 of the Work Order, and subsequently rectify the
Minor Defects set out in Attachment A in accordance with the agreed Defects Rectification Plan.
4.
Unless specified otherwise, the terms in this certificate have the same meaning as set out in the
Work Order.
DATED this
day of
20 .
…………………………………….
Signature of Entity Representative
…………………………………….
Name of Entity Representative (print)
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Attachment A.
Practical Completion Defects
This is Attachment A referred to in the Certificate of Practical Completion given by the Commonwealth of
Australia represented by the National Disability Insurance Agency and dated [insert date].
The Minor Defects are as follows:
##specify in a list or if none insert ‘NIL’
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DOCUMENT 9
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