Department of Finance
CUA 14008
HEAD AGREEMENT
CUA TITLE:
INFORMATION AND COMMUNICATION TECHNOLOGY
(ICT) SERVICES CUA
CUA NUMBER:
14008
ISSUED BY THE CONTRACT AUTHORITY ON
BEHALF OF:
The Public Authorities and other persons and bodies described as
Potential Customers in Clause 2.1 of the General Conditions
CONDITIONS:
General Conditions of Contract [March 2009]
located at
www.finance.wa.gov.au
(Government Procurement – Publications -
SCHEDULE 1 - HEAD AGREEMENT DETAILS
1. Contract Authority The Director General, Department of Finance, as delegate of the State Supply
Commission.
2. The Term of the Head Agreement
The initial term of the Head Agreement is three (3) years ceasing on the 30 September 2015.
3. Commencement Date The Commencement Date is the date agreed in the Acceptance Letter
4. Extensions The Contract Authority has one (1) options to extend the Term, each option
having a three (3) year duration.
5. Notice of Extension Clause 3.8 of the General Conditions applies.
6. Price Variation The Contract Authority will accept requests for Price Variation:
at the time of a Contract Refresh; or
where a Contract Refresh is not undertaken in any one 12-month period, on the anniversary of the Contract Commencement Date. The Contractor shall apply in writing for the Contract Authority’s approval each time a revised price is to be applied to the Contract. Twenty eight (28) days
prior notice is required for a Price Variation request.
No price variation is payable unless and until approved by the Contract Authority.
At all other times, the maximum Contract Price is fixed.
Insurances
7. Public Liability Public liability insurance covering the legal liability of the Contractor and the
Contractor’s Personnel for an amount of:
not less than $5 million for any one occurrence; and
unlimited in the aggregate.8. Workers’ Compensation
Workers’ compensation insurance in accordance with the provisions of the Workers’ Compensation and Injury Management Act 1981 (WA), including cover for common law liability for an amount of not less than $50 million for any one occurrence in respect of workers of the Contractor. The insurance policy must be extended to cover any claims and liability that may arise with an indemnity under section 175(2) of the Workers’ Compensation and Injury Management Act 1981.
9. Professional Indemnity
Professional indemnity insurance covering the legal liability of the Contractor and the Contractor’s Personnel under the Customer Contract, if awarded, arising out of any act, negligence, error or omission made or done by or on behalf of the Contractor, or any subcontractor in connection with the Contract for a sum of $2.5 million for any one claim and in the annual aggregate, with a provision of one automatic reinstatement of the full sum insured in any one period of insurance.
10. Indemnities, Liability and Releases
(a) Restricted Application of Indemnity
Sub-clauses (b) (c), (d), (e) and (f) only apply to loss or liability arising from claims made by a third party. The obligations of the parties in circumstances not addressed by these clauses will be determined by reference to sub-clause (g).
(b) Third Party Indemnity by successful
Respondent
Subject to the releases from liability (if any) in sub-clause (i) the successful Respondent indemnifies the Customer (including its Personnel) against any loss or liability that has been incurred by the Customer as the result of a claim made by a third party, including loss or liability in respect of personal injury, sickness, death or property damage, where and to the extent that loss or liability:
a) was caused or contributed to by a breach of the Customer Contract, or tortious, unlawful or wrongful act or omission, by the successful
Respondent or its Personnel; or
b) arises from a claim made or threatened against the Customer in which it is alleged that a Service or Product (including the Customer's use of a Service or Product) infringes the Intellectual Property Rights of a third party. For the purposes of this sub-clause (b), an infringement of Intellectual Property Rights includes unauthorised acts which would, but for the operation of the Patents Act 1990 (Cth) s.163, the Designs Act
2003 (Cth) s.96, the Copyright Act 1968 (Cth) s.183 and the Circuits Layout Act 1989 (Cth) s.25, constitute an infringement; or
c) arises from a claim made or threatened against the Customer relating to a breach of confidence or privacy by, or a conflict of interest in respect of, the successful Respondent.
(c) Customer's Obligations to successful
Respondent
Where the Customer wishes to enforce an indemnity in sub-clause (b), it must a) not admit liability for the alleged breach, or tortious, unlawful, or wilfully
wrong act or omission, or infringement;
b) give written notice to the successful Respondent as soon as practicable;
c) subject to the successful Respondent agreeing to comply at all times with government policy relevant to the conduct of the litigation, permit the successful Respondent, at the successful Respondent's expense, to handle all negotiations for settlement and, as permitted by law, to control and direct any litigation that may follow; and
d) in the event that the successful Respondent is permitted to handle negotiations or conduct litigation on behalf of the Customer, provide all reasonable assistance to the successful Respondent in the handling of any negotiations and litigation.
(d) Continued Use or Replacement of Infringing Material
If a claim of infringement of Intellectual Property Rights is made or threatened by a third party, the Customer will allow the successful Respondent, at the successful Respondent’s expense, to either:
a) obtain for the Customer the right to continued use of the Product; or b) replace or modify the Product so that the alleged infringement ceases
so long as the Product continues to provide the Customer with equivalent functionality and performance as required in the Specifications.
(e) Third Party Indemnity by the Customer
Subject to the releases from liability (if any) in sub-clause (i) the Customer indemnifies the successful Respondent (including its Personnel) against any loss or liability that has been incurred by the successful Respondent as the result of a claim made by a third party where and to the extent that loss or liability was caused or contributed to by a breach of the Contract or tortious act or omission by the Customer or its Personnel including loss or liability in respect of personal injury, sickness, death or property damage.
(f) Successful Respondent's Obligations to Customer
Where the successful Respondent wishes to rely on the indemnity in sub-clause (e) it must:
a) not admit liability for the alleged breach or tortious act or omission; b) give written notice to the Customer as soon as practicable;
c) permit the Customer, at the Customer's expense, to handle all negotiations for settlement and, as permitted by law, to control and direct any litigation that may follow; and
d) provide all reasonable assistance to the Customer in the handling of negotiations and litigation.
(g) Liability Generally Subject to the releases from loss or liability (if any) in sub-clause (j) the liability of either party for breach of the Contract or for any other common law or statutory cause of action arising out of the operation of the Contract will be determined under the relevant law in Western Australia that is recognised, and would be applied, by the High Court of Australia from time to time.
(h) General Exclusions from Release from
Any release from loss or liability does not apply to loss or liability for: a) personal injury, sickness and death;
Liability b) subject to sub clause (d) “Loss of data” under Indemnities, Liability and Releases within the Customer Contract, loss of, or damage to, tangible property which does not include data or Software;
c) infringement of Intellectual Property Rights;
d) breach of confidence or privacy by the successful Respondent; e) a conflict of interest in respect of the successful Respondent but in no
circumstances is:
a. the successful Respondent released from liability to the Customer in respect of unlawful or wrongful acts or omissions of the successful Respondent or its Personnel;
b. either party released from liability to the other in respect of any special, exemplary or punitive damages awarded.
(i) Third Party Liability Each party releases the other from all loss or liability arising from claims made by a third party arising from a breach of the Contract or tortious act or omission under sub-clauses (b) and (e) from any and all claims in excess of $2.5 Million. This release will apply for the benefit of both parties and applies in respect of any one occurrence, a series of related occurrences or in the aggregate during the Term.
(j) Customer – Successful Respondent (Party- Party) Liability
Each party releases the other in respect of Party-Party claims from all loss or liability from a breach of the Customer Contract or tortious act or omission in excess of $2.5 Million.
This release will apply for the benefit of both parties and applies in respect of any one occurrence, a series of related occurrences or in the aggregate during the Term.
11. Contract Management Requirements
(Note: The Contract referred to in this section of the Contract Management
is the CUA14008
Contract between
Finance and the
Contractor. i.e. it
does not refer to managing any Customer Contract
resulting from it.)
Reporting
See Schedule 6
Meetings
The Contractor must meet with the Contract Authority representatives as and when required by the Contract Authority.
Key Performance Indicators
The Contract Authority will assess the contractors performance using the following criteria:
(i) Customer satisfaction;
(ii) Maintenance of Contractor Profile information; (iii) Compliance with Sales Reporting requirements; (iv) Compliance with Insurance requirements; and
(v) Active presence in the ICT Services CUA marketplace. Feedback will be provided to the contractor through such methods as surveys, reports, interviews, liaising with contractors, site visits and by proxy through the Supplier Reference Group (SRG).
Contract Authority’s Representative
Michelle Hurdle or as delegated Telephone 9222 5175
Contract Authority’s address and facsimile details
Government Procurement Department of Finance 4th floor Optima Centre 16 Parkland Street OSBORNE PARK WA 6017 Facsimile 08 9481 0785 Or as advised. 12. Confidential Information
For the purposes of paragraph (b) of the definition of “Confidential Information” in clause 2.1 of the General Conditions, there is no information that is specified by the Contract Authority as confidential.
13. Panel Arrangement The ICT Services CUA is a panel arrangement.
Clause 4.19 of the General Conditions applies.
14. Police Clearance
Clause 18.4 of the General Conditions applies.
15. Confidential Declaration – Prevention of Paedophilia
Clause 18.5 of the General Conditions applies.
16. Working Papers Clause 23.7 of the General Conditions applies.
17. Publicity For the purpose of 25.4 of the General Conditions, no other Public Authority is
specified.
Special Conditions 18. Performance
Guarantee
The Customer may conduct a financial due diligence on the short-listed Respondent. If the Customer determines in its discretion that the short-listed Respondent lacks the financial capability to perform the Contract then: the Customer may seek a performance guarantee; and
if the Customer requests a performance guarantee, then the short-listed Respondent must provide the performance guarantee by the date specified by the Customer.
19. Financial Undertaking The Customer may require a financial undertaking from an entity, and in a form,
acceptable to the Customer.
The financial undertaking may be drawn down on termination of the Contract due to breach of contract by the Contractor or on the occurrence of any of the trigger events identified in these Customer Contract Details.
20. Discharge of Performance and Financial Guarantee
The Customer will consent to the discharge of a performance guarantee, financial undertaking or similar arrangement made pursuant to these Special Conditions if, at any time following the termination or expiry of the Customer Contract, the successful Respondent can demonstrate to the Customer’s reasonable satisfaction that there is no basis for any claim to be made against the performance guarantee, financial undertaking or similar arrangement in the future.
21. Liquidated Damages and Trigger Events
The Customer may seek to specify the amount of liquidated damages and the events that trigger the payment of the liquidated damages.
22. Warranties The Customer may seek the benefit of a warranty, and will specify the type of
warranty in the Quotation Form and/or the Customer Contract.
If no warranty is specified in the Quotation Form or the Customer Contract, no warranties are specified for the purposes of clause 19.5 of the General Conditions.
Defined Terms
23. Contract Refresh The Contract Authority will enable the qualification of new suppliers to the CUA
or suppliers seeking qualification in additional categories on a periodical basis.
24. Category Benchmark
Price All Respondents average category price averaged across the entire category.
25. Comparator A Respondents average category price specified as a percentage of the
