A. The Commonwealth requires the provision of certain consultancy services to the Department for the purposes of raising the level of awareness by Local Government, of XML and Internet Applications, particularly in relation to Electronic Service Delivery. The Consultant is to conduct a "three phase" survey of all local government agencies in NSW.

B. The Consultant has fully informed itself on all aspects of the work required to be performed.

C. The Commonwealth has agreed to accept the Consultant’s offer to provide the Consultancy Services upon the terms and conditions contained in this Contract

In this Contract, unless the contrary intention appears:

In this Contract, unless the contrary intention appears:

Schedule 1 [Consultant’s Obligations], Schedule 2 [Commonwealth’s Obligations] and annexures (if any) form part of this Contract. In the event of any conflict between the terms and conditions contained in the clauses of the Contract and any part of the Schedules (and annexures if any), the terms and conditions of the clauses take precedence. In the event of any conflict between any part of the Schedules and any part of any annexures if any, the Schedules take precedence.

The Consultant must perform the Consultancy Services (including the preparation of Contract Material) in accordance with Schedule 1 [Consultant’s Obligations] to a standard recognised as a high professional standard by the industry to which the Consultant belongs.

The Consultant must perform the Consultancy Services at the times specified in Item C of Schedule 1 [Time-frame] and in the manner specified in Schedule 1 [Consultant’s Obligations] generally.

The Commonwealth must pay to the Consultant the reasonable and proper fees and allowances as specified in Item CC [Fees] and Item DD [Allowances] and must meet and provide the reasonable and proper costs and assistance as specified in Item EE of Schedule 2 [Assistance].

3.2. The fee determined in accordance with clause 3.1 includes GST for Taxable Supplies made by the Consultant under this Contract.

3.3. Where Item CC of Schedule 2 [Fees] provides that the Consultant is to be paid by progressive instalments (or by a single payment), the Commonwealth is entitled, without derogating from any other right it may have, to defer payment of an instalment (or the single payment) until the Consultant has completed to the satisfaction of the Commonwealth that part of the Consultancy Services to which that instalment (or the single payment) relates.

3.4 The Consultant must submit invoices for payment in the manner specified in Item D of Schedule 1 [Invoice Procedures].

3.5. The Consultant agrees to issue the Commonwealth with either:

3.6. The Commonwealth may withhold 48.5% of the amount claimed under an invoice that does not specify an ABN in respect of the Consultant.

3.7. If an invoice is found to have been incorrectly rendered after payment, any underpayment or overpayment is recoverable by or from the Consultant, as the case may be, and without limiting recourse to other available means, may be offset against any amount subsequently due by the Commonwealth to the Consultant, whether under this Contract or any other contract the Commonwealth has with the Consultant.

3.8. If any monies due to the Commonwealth remain unpaid or unrepaid after the date on which they should have been paid or repaid the Commonwealth is entitled to be compensated for the loss suffered by reason of the withholding of those moneys. The recompense to the Commonwealth for the loss, caused by either the expense of borrowing other money in place of, or the loss of investment opportunity of, money unpaid or unrepaid, is to be interest on the amount of the money unpaid or unrepaid at the weighted average yield of the 13 week Treasury Notes allotted in the latest tender of those Notes prior to the date on which the money unpaid or unrepaid first becomes payable or repayable plus a margin of four per cent.

3.9 The Commonwealth is notionally liable to pay GST.

3.10 Without limiting the generality of clause 3.2, if a supply made by the Commonwealth under this Contract is a Taxable Supply, the Commonwealth may, by notice in writing to the Consultant, require the Consultant to pay the Commonwealth within 30 days of receiving such notice, an amount equal to the amount of GST which is payable by the Commonwealth on the value of that Taxable Supply.

3.11 The Commonwealth agrees to issue the Consultant with either:

This Contract constitutes the entire agreement between the parties and supersedes all communications, negotiations, arrangements and agreements, whether oral or written, between the parties with respect to the subject matter of this Contract.

No agreement or understanding varying or extending this Contract, including in particular the scope of the Consultancy Services in Item A of Schedule 1 [Consultancy Services], is legally binding upon either party unless in writing and signed by both parties.

Except where a subcontractor is one of the Specified Personnel, the Consultant must not, without the prior written approval of the Commonwealth, subcontract the performance of any part of the Consultancy Services. In giving written approval, the Commonwealth may impose such terms and conditions as it thinks fit.

The Consultant is fully responsible for the performance of the Consultancy Services notwithstanding that the Consultant subcontracts the performance of any part of those services.

Despite any approval given by the Commonwealth under clause 5.1, the Consultant is responsible for ensuring the suitability of a subcontractor for the work proposed to be carried out, and that the work carried out meets the requirements of this Contract.

The Consultant must ensure that a subcontractor is aware of all terms and conditions of this Contract relevant to the subcontractor’s part in the provision of the Consultancy Services.

The Consultant must pay the subcontractors in accordance with the terms of the relevant subcontract.

The Consultant must ensure that the Specified Personnel undertake work in respect of the Consultancy Services in accordance with the terms of this Contract.

Where Specified Personnel are unable to undertake work in respect of the Consultancy Services, the Consultant must notify the Commonwealth immediately. The Consultant must, if so requested by the Commonwealth, provide replacement personnel acceptable to the Commonwealth at no additional charge and at the earliest opportunity.

The Commonwealth may, at its absolute discretion, give notice requiring the Consultant to remove personnel (including Specified Personnel) from work in respect of the Consultancy Services. The Consultant must, at its own cost, promptly arrange for the removal of such personnel from work in respect of the Consultancy Services and their replacement with personnel acceptable to the Commonwealth.

If the Consultant is unable to provide acceptable replacement personnel the Commonwealth may terminate this Contract in accordance with the provisions of clause 21 [Default].

The Consultant must liaise with and report to the Project Delegate or the Liaison Officer as reasonably required by the Project Delegate during the period of this Contract.

The Consultant may nominate from time to time a person who has authority to receive and sign notices and written communications for the Consultant under this Contract and accept any request or direction in relation to the Consultancy Services.

Ownership of all Contract Material vests in the Commonwealth upon creation.

Upon the expiration or earlier termination of this Contract the Consultant must, subject to clause 12 [Protection of Personal Information], deliver to the Department all Contract Material remaining in its possession save for one copy which must be retained for the Consultant’s file.

The preceding subclauses of this clause apply subject to any stipulation to the contrary in Item B1 of Schedule 1 [Consultant’s Rights to Contract Material].

Ownership of all Commonwealth Material remains vested at all times in the Commonwealth.

Upon the expiration or earlier termination of this Contract, the Consultant must return to the Department all Commonwealth Material remaining in its possession.

The preceding subclauses of this clause apply subject to any stipulation to the contrary in Item B2 of Schedule 1 [Consultant’s Rights to Commonwealth Material].

The Consultant must ensure that the Commonwealth Material is used, copied, supplied or reproduced only for the purposes of this Contract.

The Consultant must use the Commonwealth Material strictly in accordance with any conditions or restrictions set out in Item B3 of Schedule 1 [Use of Commonwealth Material], or notified from time to time in writing by the Commonwealth.

Subject to this clause, Intellectual Property in all Contract Material vests immediately in the Commonwealth.

Clause 10.1 does not affect the ownership of Intellectual Property in any Material which is specified in Item B4 of Schedule 1 [Material not to vest in the Commonwealth]. However, the Consultant grants to the Commonwealth a permanent, irrevocable royalty-free, non-exclusive licence (including a right of sublicence) to use, reproduce, adapt and exploit the Material anywhere in the world. Notwithstanding Part VII of the Copyright Act 1968, publication of the Material in accordance with this licence does not affect such ownership.

If requested by the Commonwealth to do so, the Consultant must bring into existence, sign, execute or otherwise deal with any document which may be necessary or desirable to give effect to this clause.

The Consultant warrants that it is entitled, or will be entitled or will procure that it is entitled at the relevant time, to deal with the Intellectual Property in any Contract Material in the manner provided for in this clause.

The Consultant must at all times indemnify and hold harmless the Commonwealth, its officers, employees and agents (in this clause referred to as ‘those indemnified’) from and against any loss (including legal costs and expenses on a solicitor/own client basis) or liability incurred or suffered by any of those indemnified arising from any claim, suit, demand, action or proceeding by any person in respect of any infringement of Intellectual Property rights by the Consultant, its employees, agents or subcontractors in the course of, or incidental to, performing the Consultancy Services or the use by the Commonwealth of the Contract Material.

The indemnity referred to in clause 10.5 survives the expiration or termination of this Contract.

The Consultant must not, without the prior written approval of the Commonwealth, disclose to any person other than the Commonwealth, any Confidential Information contained in Commonwealth Material or Contract Material. In giving written approval the Commonwealth may impose such terms and conditions as it thinks fit.

11.2. The Consultant must give the Commonwealth written notice within three days if the Consultant receives, from a person other than the Commonwealth, a request for access to or copies of information or documents forming part of the Confidential Information, Contract Material or Commonwealth Material.

11.3. The Commonwealth must not, without the prior written approval of the Consultant, disclose to any person other than the Consultant, any information which is confidential to the Consultant.

11.4. The Commonwealth may at any time require the Consultant to give and to arrange for its employees, agents and subcontractors engaged in the performance of the Consultancy Services to give written undertakings, in a form required by the Commonwealth, relating to the non-disclosure of such Confidential Information. The Consultant must promptly arrange for all such undertakings to be given.

11.5. The obligation on the Commonwealth under this clause will not be taken to have been breached where:

11.6. The obligation on the Consultant under this clause will not be taken to have been breached where the information referred to is legally required to be disclosed.

11.7. This clause survives the expiration or termination of this Contract.

The Consultant agrees with respect to all services to be performed under this Contract:

12.2. The indemnity referred to in clause 12.1(f) survives the expiration or termination of this Contract

The Consultant:

The Consultant must, when using the Commonwealth’s premises or facilities, comply with all reasonable directions and Departmental procedures relating to occupational health (including the Commonwealth’s smoke free work place policy), safety and security in effect at those premises or in regard to those facilities, as notified by the Commonwealth or as might reasonably be inferred from the use to which the premises or facilities are being put.

The Consultant must comply with its obligations, if any, under the Equal Opportunity for Women in the Workplace Act 1999 and must not enter into a subcontract under this Contract with a subcontractor named by the Director of Equal Opportunity for Women in the Workplace Agency as an employer currently not complying with that Act.

Subject to the provisions of this Contract, the Consultant must at all times indemnify and hold harmless the Commonwealth, its officers, employees and agents (in this clause referred to as "those indemnified") from and against any loss (including legal costs and expenses on a solicitor/own client basis), or liability, reasonably incurred or suffered by any of those indemnified arising from any claim, suit, demand, action or proceeding by any person against any of those indemnified where such loss or liability was caused by any unlawful or negligent act or omission of the Consultant, its employees, agents or subcontractors in connection with this Contract.

The Consultant’s liability to indemnify the Commonwealth under clause 15.1 is reduced proportionally to the extent that any act or omission of the Commonwealth or its employees or agents contributed to the loss or liability.

The indemnity referred to in clause 15.1 survives the expiration or termination of this Contract.

The Consultant must, for so long as any obligations remain in connection with this Contract, have and maintain insurance as specified in Item F of Schedule 1 [Insurance].

Wherever requested, the Consultant must provide the Commonwealth with a copy of any insurance policy held in accordance with clause 16.1 and a certificate of currency.

The Consultant warrants that, to the best of its knowledge after making diligent inquiry, at the date of signing this Contract no conflict of interest exists or is likely to arise in the performance of its obligations under this Contract by itself or by any of its employees, agents or subcontractors.

If during the term of this Contract a conflict of interest arises, or appears likely to arise, the Consultant undertakes to notify the Commonwealth immediately in writing and to take such steps as the Commonwealth may reasonably require to resolve or otherwise deal with the conflict. If the Consultant fails to notify the Commonwealth or is unable or unwilling to resolve or deal with the conflict as required, the Commonwealth may terminate this Contract in accordance with the provisions of clause 21 [Default].

The Consultant must not, and must ensure that any employee, agent or subcontractor of the Consultant does not, engage in any activity or obtain any interest during the course of this Contract that is likely to conflict with or restrict the Consultant in providing the Consultancy Services to the Commonwealth fairly and independently.

The Consultant must at all reasonable times give to the Project Delegate or to any persons authorised in writing by the Project Delegate, access to premises occupied by the Consultant where the Consultancy Services are being undertaken and must permit those persons to inspect the performance of the Consultancy Services, and inspect and copy any Commonwealth Material, Contract Material or other Material relevant to the Consultancy Services.

The Consultant must not represent itself, and must ensure that its employees do not represent themselves, as being an employee, partner or agent of the Commonwealth, or as otherwise able to bind or represent the Commonwealth.

The Consultant will not by virtue of this Contract be or for any purpose be deemed to be an employee, partner or agent of the Commonwealth, or as having any power or authority to bind or represent the Commonwealth.

The Commonwealth may, at any time by written notice, terminate this Contract, in whole or in part. If this Contract is so terminated, the Commonwealth is liable only for:

Upon receipt of a notice of termination the Consultant must:

In the event of partial termination the Commonwealth’s liability to pay fees under Item CC of Schedule 2 [Fees] will, in the absence of agreement to the contrary, abate proportionately to the reduction in the Consultancy Services.

The Commonwealth will not be liable to pay compensation in an amount which would, in addition to any amounts paid or due, or becoming due, to the Consultant under this Contract, together exceed the fees set out in Item CC of Schedule 2 [Fees]. The Consultant will not be entitled to compensation for loss of prospective profits.

If either party is in default under this Contract on account of the failure to perform or observe any obligation or undertaking to be performed or observed on its part under this Contract, the party not in default may, subject to clause 21.2, by notice in writing to the other party, terminate this Contract in whole or in part without prejudice to any right of action or remedy which has accrued or which may accrue in favour of either party.

Where the default is capable of being remedied, a party must not exercise its rights of termination under clause 21.1 unless it has first given to the other party notice in writing specifying the default and requiring the other party to remedy it within the time (being not less than 10 working days) specified in the notice and the default is not remedied within the time allowed.

If the Consultant:

the Commonwealth may, by notice in writing, terminate this Contract without prejudice to any right of action or remedy which has accrued or which may accrue in favour of either party.

A waiver by either party in respect of any breach of a condition or provision of this Contract will not be deemed to be a waiver in respect of any continuing or subsequent breach of that provision, or breach of any other provision. The failure of either party to enforce at any time any of the provisions of this Contract will in no way be interpreted as a waiver of such provision.

The Consultant must in carrying out this Contract comply with the provisions of any relevant statutes, regulations, by-laws, and requirements of any Commonwealth, State, Territory or local authority.

Subject to clause 24.4, before resorting to external dispute resolution mechanisms, the parties must attempt to settle by negotiation any dispute in relation to this Contract including by referring the matter to personnel who may have authority to intervene and direct some form of resolution.

If a dispute is not settled by the parties within 10 working days of one party first sending to the other party written notice that they are in dispute, the dispute may be the subject of court proceedings or may be submitted to some alternative dispute resolution mechanism as may be agreed in writing between the parties.

Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Contract.

A party may commence court proceedings relating to any dispute arising from this Contract at any time where that party seeks urgent interlocutory relief.

This clause survives the expiration or termination of this Contract.

The Consultant must not assign, in whole or in part, its benefits under this Contract without the prior written approval of the Commonwealth.

The Consultant must not consult with any other person or body for the purposes of entering into an arrangement which will require novation of the Contract without first consulting the Commonwealth.

Each provision of this Contract and each part thereof is, unless the context otherwise necessarily requires it, to be read and construed as a separate and severable provision or part. If any provision or part thereof is void or otherwise unenforceable for any reason then that provision or part (as the case may be) is severed and the remainder will be read and construed as if the severable provision or part had never existed.

This Contract is governed by and construed in accordance with the laws of the State or Territory nominated in Item H of Schedule 1 [Applicable Law] and the parties agree, subject to this Contract that the Courts of that State or Territory have jurisdiction to entertain any action in respect of, or arising out of, this Contract.

Any notice, request or other communication to be given or served pursuant to this Contract must be in writing and dealt with as follows:

Any notice, request or other communication is to be delivered by hand, sent by pre-paid post or transmitted electronically, and if it is sent or transmitted electronically a copy is to be sent to the addressee by pre-paid post.

Any notice, request or other communication will be deemed to be received:

EXECUTED BY ) …………………………