CONTRACT FOR PROVISION OF SERVICES

BETWEEN THE

COMMONWEALTH OF AUSTRALIA
represented by the
Chief Executive Officer of the
Australian Communications and Media Authority
ABN 55 386 169 386

AND

[Insert COMPANY NAME]

ACN [ ]
ABN [ ]

in relation to the provision of Services for the

[NAME OF SERVICE]

SERVICE PROVIDER COMMISSION No. 05/ACMA [ ]

 TABLE OF CLAUSES

1. INTERPRETATION
2. PROVISION OF SERVICES
3. FEES, ALLOWANCES AND ASSISTANCE
4. TAXES, DUTIES AND GOVERNMENT CHARGES
5. ENTIRE AGREEMENT AND VARIATION
6. SUBCONTRACTING
7. SPECIFIED PERSONNEL
8. LIAISON
9. ACMA MATERIAL
10. INTELLECTUAL PROPERTY IN CONTRACT MATERIAL
11. DISCLOSURE OF INFORMATION
12. PROTECTION OF PERSONAL INFORMATION
13. MORAL RIGHTS
14. ACCESS TO ACMA PREMISES AND COMPLIANCE WITH ACMA POLICIES
15. INDEMNITY
16. INSURANCE
17. CONFLICT OF INTEREST
18. ACCESS TO CONTRACTOR’S PREMISES
19. AUDITOR-GENERAL
20. NEGATION OF EMPLOYMENT, PARTNERSHIP AND AGENCY
21. TERMINATION AND REDUCTION
22. DEFAULT
23. WAIVER
24. COMPLIANCE WITH LAW
25. ENVIRONMENTAL PROTECTION
26. HAZARDOUS SUBSTANCES
27. DISPUTE RESOLUTION
28. ASSIGNMENT AND NOVATION
29. SEVERABILITY
30. APPLICABLE LAW
31. NOTICES
32. SURVIVAL
SCHEDULES
Schedule 1. OBLIGATIONS AND SERVICES TO BE PERFORMED
Schedule 2. DEED OF CONFIDENTIALITY, PRIVACY AND OWNERSHIP OF
INTELLECTUAL PROPERTY RIGHTS (if required)

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THIS CONTRACT is made on the ........................ of ........................ 2005
BETWEEN
The COMMONWEALTH OF AUSTRALIA represented by the Chief Executive Officer
of the Australian Communications and Media Authority, a body corporate established
under the Australian Communications and Media Authority Act 2005, ABN 55 386 169
386, (‘the Commonwealth’)
AND
[CONTRACTOR’S NAME], whose registered office is at [CONTRACTOR’S
ADDRESS], [ABN, ACN] (‘the Contractor’)
WHEREAS:
A. The Commonwealth, for the benefit of ACMA, requires the provision of certain
Services for the purposes of [BRIEF DESCRIPTION] (‘the Services’).
B. The Contractor has fully informed itself on all aspects of the work required to be
performed and has submitted a proposal and quotation dated [INSERT DATE].
C. The Commonwealth has agreed to accept the Contractor's offer dated [INSERT
DATE] to provide the Services for the benefit of ACMA upon the terms and conditions
contained in this Contract.
NOW IT IS HEREBY AGREED as follows:

1. INTERPRETATION
1.1 In this Contract unless the contrary intention appears:
‘ACMA’ means the Australian Communications and Media Authority;
‘ACMA Material’ means any Material provided by ACMA to the Contractor for the
purposes of this Contract or which is copied or derived from Material so provided;
‘Confidential Information’ means information that:
(a) is by its nature confidential;
(b) is designated by ACMA as confidential; or
(c) the Contractor knows or ought to know is confidential;
but does not include information which:
(d) is or becomes public knowledge, other than by breach of this Contract or by
any other unlawful means;
(e) is in the possession of the Contractor without restriction in relation to
disclosure before the date of receipt from ACMA; or
(f) has been independently developed or acquired by the Contractor;
‘Contract’ means this document, together with any Schedules and Annexures;
‘Contract Material’ means all Material:
(a) brought into existence for the purpose of performing the Services;
(b) incorporated in, supplied or required to be supplied along with the Material
referred to in paragraph (a); or

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 (c) copied or derived from Material referred to in paragraphs (a) or (b);
‘Contractor’ shall, where the context so admits, include the officers, employees, agents and
Subcontractors to the Contractor;
‘Effective Date’ means the date on which this Contract is signed by the parties, or if signed
on separate days, on the date of the last signature;
‘GST’ has the meaning given in the A New Tax System (Goods and Services Tax) Act
1999;
‘Intellectual Property’ includes all copyright and neighbouring rights, all rights in relation
to inventions (including patent rights), plant varieties, registered and unregistered
trademarks (including service marks), registered designs, Confidential Information
(including trade secrets and know how) and circuit layouts, and all other rights resulting
from intellectual activity in the industrial, scientific, literary or artistic fields;
‘Material’ includes documents, software, goods, equipment, information and data stored
by any means;
‘Personal Information’ means 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;
‘Project Officer’ means the person for the time being holding, occupying or performing
the duties of a position in ACMA specified in Item G of Schedule 1 or any other person
specified by the Project Officer in writing and notified to the Contractor;
‘Services’ means the services to be performed or provided by the Contractor as described
in Item A of Schedule 1, and includes the provision to ACMA of the Contract Material
specified in Item B of Schedule 1;
‘Specified Personnel’ means the personnel included in Item E of Schedule 1 as personnel
required to undertake the Services or part of the work constituting the Services;
’Subcontractor’ means any person that, for the purposes of this Contract, furnishes
Services directly to the Contractor or indirectly to the Contractor through another person.
1.2 In this Contract, unless the contrary intention appears:
(a) Words importing a gender include any other gender.
(b) Words in the singular number include the plural and words in the plural
number include the singular.
(c) Clause headings in this Contract are for convenient reference only and have no
effect in limiting or extending the language of the provisions to which they
refer.
(d) A reference to a person includes a partnership and a body whether corporate or
otherwise; and where the context permits, shall include a reference to the
person’s executors, administrators, successors (including but not limited to,
persons taking by novation) and permitted assigns.
(e) A reference to a clause or subclause is a reference to a clause or subclause of
this Contract, and reference to an Item is a reference to an Item of the
Schedules to this Contract.

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 (f) A reference to a Schedule (or Annexure) is a reference to a Schedule (or
Annexure) to this Contract, and includes such Schedule (or Annexure) as
amended or replaced from time to time by agreement in writing between the
parties.
(g) Where a word or phrase is given a particular meaning, other parts of speech
and grammatical forms of that word or phrase have corresponding meanings.
(h) Schedules 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 this
Contract and any part (Item) of the Schedules and Annexures, if any, then the
terms and conditions of the clauses shall take precedence.
(i) Where a conflict arises between any part of the Schedule and any part of an
Annexure, the Schedule prevails.
(j) All monetary references are references to Australian currency.
(k) A reference to any statute or other legislation (whether primary or subordinate)
is to a statute or other legislation of the Commonwealth or a State or Territory
of Australia as amended or replaced from time to time.
(l) A provision of this Contract shall not be construed to the disadvantage of a
party solely on the basis that the party proposed that provision.

2. PROVISION OF SERVICES
2.1 The Contractor shall perform the Services (including the preparation of Contract
Material) in accordance with and described in Item A of Schedule 1 at a high
standard of industry practice and to the satisfaction of ACMA.
2.2 The Contractor warrants that:
(a) it, its agents and Subcontractors have the necessary expertise, experience,
capacity and facilities required to perform its obligations and responsibilities in
accordance with this Contract, and will use due care and skill in the
performance of the Services;
(b) the Services will be fit for the purpose for which they are intended;
(c) any Materials the Contractor uses to perform the Services will be free from
defects in design, performance and workmanship; and
(d) all work performed under this Contract will be carried out and completed in
the most cost-effective manner, using materials suitable for the purpose, and in
accordance with commercially recognised industry procedures, requirements
and other standard practices including the relevant Australian (or equivalent
international) standards.
2.3 The Contractor shall perform the Services during the term specified in Item C of
Schedule 1, and at the times and in the manner specified in Item C of Schedule 1.
2.4 For each day that the Contractor is engaged in providing the Services, the
Contractor will keep an accurate record of the number of hours worked, and the
matters worked on, in a form to allow the Contractor to prepare accurate invoices,
and to allow ACMA to reconcile and check invoices. The Contractor will make
copies of those records available to the Project Officer on request.

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3. FEES, ALLOWANCES AND ASSISTANCE
3.1 The Commonwealth shall:
(a) pay to the Contractor the fees specified in Item D of Schedule 1;
(b) pay the allowances and meet the costs specified in Item D of Schedule 1; and
(c) provide the facilities and assistance specified in Item D of Schedule 1;
in accordance with the terms of this Contract.
3.2 Where Item D of Schedule 1 does not provide that the Contractor is to be paid by
progressive instalments, the Contractor shall be paid monthly in arrears.
3.3 The fees, and any allowances and costs, will be paid only after receipt of a
correctly prepared invoice. An invoice is correctly prepared if:
(a) the amount claimed is in respect of Services actually performed and costs and
expenses actually incurred;
(b) the amount specified in the invoice is correctly calculated in accordance with
this Contract;
(c) the invoice sets out the basis of calculation of the fees, allowances and costs
charged in that invoice;
(d) a claim for reimbursement of expenditure included in any costs or allowances
is supported by receipts which clearly identify those costs or allowances;
(e) the invoice sets out the title of the Contract, the Service Provider Commission
Number, and the name of the Project Officer; and
(f) the invoice conforms to any other requirements specified in Item D of
Schedule 1.
3.4 Unless the Project Officer rejects any claim for payment which is not in accordance
with this Contract, payments will be due and payable within the number of days
after receipt of a correctly prepared invoice specified in Item D of Schedule 1.
3.5 The obligation of the Commonwealth to make a payment under this clause 3 is
subject to the performance of the Services to the satisfaction of ACMA. The
Commonwealth shall be entitled, in addition to any other right it may have, to
delay payment or any instalment of fees or allowances, until the Contractor has
completed, to the satisfaction of ACMA, that part of the Services to which the
payment relates.
3.6 If an invoice is found to have been incorrectly rendered after payment by the
Commonwealth, any underpayment or over-payment shall be recoverable by or
from the Contractor, as the case may be, and without limiting recourse to other
available remedies, may be offset against any amount subsequently due from the
Commonwealth to the Contractor.
3.7 The preferred method of payment under this contract is electronic funds transfer by
way of direct credit to the Contractor’s Nominated Bank Account. The Contractor
must maintain a Contractor’s Nominated Bank Account for the purposes of
receiving electronic funds transfer for payment by the Commonwealth under this
Contract

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4. TAXES, DUTIES AND GOVERNMENT CHARGES
4.1 All taxes, duties and charges imposed or levied in Australia or overseas in
connection with the Services shall be borne by the Contractor or its Subcontractor,
as the case requires. The fees and charges specified in Item D of Schedule 1
include the GST (Goods and Services Tax) for Services to be provided under this
Contract which are taxable supplies within the meaning of the A New Tax System
(Goods and Services Tax) Act 1999 (‘the GST Act’).
4.2 The Contractor agrees to issue the Commonwealth with a tax invoice in accordance
with the GST Act in relation to all taxable supplies made for the benefit of ACMA
under this Contract.

5. ENTIRE AGREEMENT AND VARIATION

5.1 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.
5.2 The Contractor acknowledges that it does not rely upon any representation,
warranty, condition or other conduct on the part of the Commonwealth or ACMA
or any person purporting to act on behalf of the Commonwealth or ACMA in
entering into this Contract other than any express warranty or condition contained
in this Contract.
5.3 No agreement or understanding varying or extending this Contract (including in
particular the scope of the Services described in Item A of Schedule 1) shall be
legally binding upon either party unless it is in writing and signed by both parties.

6. SUBCONTRACTING
6.1 The Contractor shall not, without the prior written approval of the Commonwealth,
subcontract the performance of the whole or any part of the Services. In giving
written approval, the Commonwealth may impose such terms and conditions as it
thinks fit.
6.2 The Contractor shall be fully responsible for the performance of the Services
notwithstanding that the Contractor has subcontracted the performance of any part
of those Services.
6.3 Despite any approval given by the Commonwealth, the Contractor shall exercise
care in selection of a Subcontractor and shall be responsible for ensuring the
suitability of a Subcontractor for the proper performance of the Services proposed
to be carried out by the Subcontractor, and for ensuring that the performance of the
Services meets the requirements of this Contract.

7. SPECIFIED PERSONNEL
7.1 The Contractor shall ensure that where the names of Specified Personnel are
included in Item E of Schedule 1, those persons will undertake work in respect of
the Services in accordance with the terms of this Contract.
7.2 The Contractor shall use its best endeavours to ensure that only persons who:
(a) are properly qualified for the tasks they are to perform; and
(b) will act, in all the circumstances, in a fit and proper manner; and

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 (c) have a high level of professionalism in the performance of the Services;
are engaged by the Contractor to perform the Services.
7.3 Where Specified Personnel or any other personnel who perform the Services are
unable to undertake work in respect of the Services, the Contractor shall notify
ACMA immediately. The Contractor shall, if so requested by ACMA on behalf of
the Commonwealth, provide replacement personnel acceptable to ACMA at no
additional charge and at the earliest opportunity. If the Contractor does not provide
acceptable replacement personnel with suitable skills within a reasonable period,
the Commonwealth reserves the right to terminate this Contract in accordance with
the provisions of clause 22.
7.4 The Contractor acknowledges and agrees that ACMA on behalf of the
Commonwealth may, at its absolute discretion, give notice requiring the Contractor
to remove personnel (including Specified Personnel) from work in respect of the
Services. The Contractor shall, at its own cost, promptly arrange for the removal of
such personnel from work in respect of the Services and their replacement with
personnel acceptable to ACMA.
7.5 If the Contractor is unable to provide acceptable replacement personnel, the
Commonwealth may terminate this Contract in accordance with the provisions of
clause 22.
7.6 The Contractor acknowledges and agrees that if ACMA on behalf of the
Commonwealth advises the Contractor that personnel carrying out work or
performing duties in respect of the Services (including Specified Personnel) will be
required to:
(a) enter secure areas in ACMA’s buildings or places;
(b) have access to, or be responsible for the physical custody of, Confidential
Information or official, classified, sensitive or commercial information; or
(c) hold a particular kind of security clearance;
the Contractor shall provide to ACMA such information, which the Contractor is
legally entitled to provide, about such persons as ACMA from time to time
requests for the purpose of allowing ACMA to undertake necessary investigations
of those persons. ACMA shall carry out its investigations in an expeditious
manner and shall on behalf of the Commonwealth notify the Contractor in writing
of:
(i) the names of the personnel authorised to carry out work or perform duties in
respect of the Services (in this clause 7 referred to as an ‘authorised person’),
the type and level of clearance given in respect of each of those persons and
the period during which those clearances will be effective; and
(ii) the names of the personnel refused to be authorised to carry out work or
perform duties in respect of the Services;
and the Contractor shall sign a copy of that notice, and return it to ACMA as soon
as possible as acknowledgment of the contents.
7.7 The Contractor shall advise ACMA promptly in writing of any change in the
circumstances of an authorised person that, in the Contractor’s reasonable opinion,
is likely to affect ACMA’s assessment of the person as an authorised person.

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7.8 The Contractor acknowledges and agrees that ACMA on behalf of the
Commonwealth may at any time and without coming under any liability
whatsoever, withdraw, limit or suspend its authorisation in respect of a particular
authorised person and shall so notify the Contractor. In addition, the Contractor
acknowledges and agrees that ACMA shall not be bound to give any reasons for
any such withdrawal, limitation or suspension, and shall not be in any way liable in
respect of any claim, action or demand made by any such person for any loss
including but not limited to wages or damages and the Contractor shall indemnify
and keep indemnified the Commonwealth and ACMA against every such claim,
action or demand. The Contractor shall also, if requested by ACMA, provide
replacement personnel acceptable to ACMA at no additional charge and at the
earliest opportunity.

8. LIAISON
8.1 The Project Officer is responsible for the administration of this Contract on behalf
of the Commonwealth and for the benefit of ACMA. The Contractor shall liaise
with, report to and comply with any direction of the Project Officer, in accordance
with this Contract, as reasonably required by the Project Officer during the period
of this Contract.
8.2 The Contractor shall, on or before the Effective Date, nominate a person who has
authority to receive and sign notices and written communications for the
Contractor under this Contract and accept any request or direction in relation to the
Services.
8.3 The Contractor must act in good faith at all times and give to the Commonwealth
and ACMA such assistance and co-operation as the Commonwealth or ACMA
reasonably requests in connection with the operation of this Contract.

9. ACMA MATERIAL
9.1 The Commonwealth agrees to provide, and shall ensure that ACMA provides,
ACMA Material to the Contractor as specified in Item B of Schedule 1 for Contract
purposes. The Contractor shall be responsible for the reasonable care of ACMA
Material from the date the Contractor receives such ACMA Material.
9.2 Ownership of all ACMA Material remains vested at all times in the
Commonwealth, but the Commonwealth grants to the Contractor a royalty-free,
non-exclusive licence to use, reproduce and adapt ACMA Material for the purposes
of this Contract.
9.3 Upon the expiration or earlier termination of this Contract, the Contractor shall
return to ACMA all ACMA Material remaining in its possession.
9.4 Subclauses 9.1 to 9.3 apply subject to any stipulation to the contrary in Item B of
Schedule 1.
9.5 The Contractor shall ensure that ACMA Material is used, copied, supplied or
reproduced only for the purposes of this Contract. The Contractor agrees to
establish and maintain procedures to secure all ACMA Material against loss and
unauthorised access, use, modification or disclosure.
9.6 The Contractor shall use ACMA Material strictly in accordance with any
conditions or restrictions specified in Item B of Schedule 1, or notified from time
to time in writing by ACMA.

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10. INTELLECTUAL PROPERTY IN CONTRACT MATERIAL
10.1 Subject to this clause 10, Intellectual Property in all Contract Material vests or will
vest in the Commonwealth.
10.2 Subclause 10.1 does not affect the ownership of Intellectual Property in any
Material owned by the Contractor, or a Subcontractor, existing at the Effective
Date which is specified in Item B of Schedule 1. However, the Contractor grants
to the Commonwealth and ACMA, or shall procure from a Subcontractor, on
behalf of the Commonwealth and ACMA, a permanent, irrevocable, royalty-free,
non-exclusive licence (including a right of sublicence) to use, reproduce, adapt and
exploit such Material anywhere in the world. Notwithstanding Part VII of the
Copyright Act 1968, publication of the Material in accordance with this licence
shall not affect such ownership.
10.3 If requested by the Commonwealth to do so, the Contractor shall bring into
existence, sign, execute or otherwise deal with any document which may be
necessary or desirable to give effect to this clause 10.
10.4 The Contractor warrants that it is entitled, or will be entitled at the relevant time, to
deal with the Intellectual Property in any Contract Material in the manner provided
for in this clause 10.
10.5 The Contractor shall at all times indemnify and hold harmless the Commonwealth
and ACMA, its officers, employees and agents (in this subclause 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 by the Contractor, its
officers, employees, agents or Subcontractors in connection with the performance
of the Services or the use by the Commonwealth or ACMA of the Contract
Material.
10.6 The indemnity referred to in subclause 10.5 shall survive the expiration or
termination of this Contract.
10.7 The Contractor agrees to establish and maintain procedures to secure the Contract
Material in its possession against loss and unauthorised access, use, modification or
disclosure.
10.8 Upon the expiration or earlier termination of this Contract, the Contractor shall
deliver to ACMA all Contract Material remaining in its possession.

11. DISCLOSURE OF INFORMATION

11.1 The Contractor shall not, without the prior written approval of the Commonwealth
or ACMA (as the case may be), disclose to any person other than the
Commonwealth or ACMA, any Confidential Information contained in ACMA
Material or Contract Material. The Contractor agrees that in giving written
approval, the Commonwealth or ACMA may impose such terms and conditions as
it thinks fit.
11.2 The Commonwealth shall not, and shall ensure that ACMA does not, without the
prior written approval of the Contractor, disclose to any person other than the
Contractor, any information which is confidential to the Contractor.

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11.3 The Commonwealth may at any time require the Contractor to give and to arrange
for its officers, employees, agents and Subcontractors engaged in the performance
of the Services to give written undertakings, in a form required by the
Commonwealth (substantially in accordance with Schedule 2), relating to the non
disclosure of such Confidential Information. The Contractor shall promptly arrange
for all such undertakings to be given.
11.4 The obligations on the parties under this clause11 will not be taken to have been
breached to the extent that Confidential Information:
(a) is disclosed by a party to its personnel solely in order to comply with
obligations, or to exercise rights, under this Contract;
(b) is disclosed to a party’s internal management personnel solely to enable
effective management or auditing of Contract-related activities;
(c) is disclosed by the Commonwealth or ACMA to the responsible Minister;
(d) is disclosed by the Commonwealth or ACMA, in response to a request by a
House or a Committee of the Parliament of the Commonwealth of Australia;
(e) is shared by ACMA within ACMA’s organisation, or with another government
body or agency, where this serves the Commonwealth’s legitimate interests;
(f) is authorised or required by law to be disclosed; or
(g) is in the public domain otherwise than due to a breach of this clause 11.
11.5 Where a party discloses Confidential Information to another person pursuant to
subclause 11.4, the disclosing party must notify the receiving person that the
information is confidential.
11.6 In the circumstances referred to in paragraphs (a), (b) and (e) of subclause 11.4, the
disclosing party agrees not to provide the information unless the receiving person
agrees to keep the information confidential.
11.7 This clause 11 shall survive the expiration or termination of this Contract.

12. PROTECTION OF PERSONAL INFORMATION

12.1 This clause 12 applies only to the extent that the Contractor deals with Personal
Information in providing the Services under this Contract.
12.2 In this clause 12, the following terms have the same meaning as they have in the
Privacy Act 1988 (‘the Privacy Act’):
‘agency’;
‘approved privacy code’ or APC;
‘contracted service provider’;
‘Information Privacy Principle’ or IPP;
‘National Privacy Principle’ or NPP.
12.3 The Contractor acknowledges that it is a contracted service provider and agrees, in
providing Services under this Contract:
(a) to use or disclose Personal Information obtained in the course of providing
Services under this Contract only for the purposes of this Contract;

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 (b) to carry out and discharge the obligations contained in the IPPs as if it were an
agency;
(c) not to do any act or engage in any practice which, if done or engaged in by an
agency, would be a breach of an IPP;
(d) not to use or disclose Personal Information in breach of section 16F [Direct
marketing] of the Privacy Act (where applied to the Contractor), unless that
use or disclosure is explicitly required under this Contract;
(e) not to engage in an act or practice that would breach a NPP (particularly NPPs
7 to 10) or an APC (where applied to the Contractor), unless that act or
practice is explicitly required under this Contract;
(f) to comply with any request under section 95C of the Privacy Act (relating to
disclosure of any provisions of this Contract that are inconsistent with a NPP
or an APC binding on a party to this Contract);
(g) to notify ACMA immediately if the Contractor becomes aware of a breach or
possible breach of any of the obligations contained in, or referred to in, this
clause12, whether by the Contractor or its personnel;
(h) to comply with any directions, guidelines, determinations or recommendations
of the Privacy Commissioner to the extent that they relate to the handling of
Personal Information in the course of providing Services under this Contract;
and
(i) to ensure that all personnel required to deal with Personal Information for the
purposes of this Contract are made aware of the obligations of the Contractor
set out in this clause12.
12.4 The Contractor agrees to ensure that any subcontract entered into by the Contractor
for the purpose of fulfilling its obligations under this Contract imposes on the
Subcontractor the same obligations that the Contractor has under this clause 12
(including this requirement in relation to subcontracts).
12.5 The Contractor shall at all times indemnify and hold harmless the Commonwealth
and ACMA, its officers, employees and agents (in this subclause 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 misuse of Personal Information or any disclosure in breach
of an obligation of confidence by the Contractor, its officers, employees, agents or
Subcontractors whether arising under the Privacy Act or otherwise.
12.6 This clause 12 shall survive the expiration or termination of this Contract.

13. MORAL RIGHTS

13.1 For the purposes of this clause13, ‘Permitted Acts’ means any of the following
classes or types of acts or omissions:
(a) using, reproducing, adapting or exploiting all or any part of the Contract
Material, with or without attribution of authorship;
(b) supplementing the Contract Material with any other Material;

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 (c) using the Contract Material in a different context to that originally envisaged;
and
(d) the acts or omissions specified in Item B in Schedule 1;
but does not include false attribution of authorship.
13.2 Where the Contractor is a natural person and the author of the Contract Material,
he or she consents to the performance of the Permitted Acts by ACMA or any
person claiming under or through ACMA.
13.3 If subclause 13.2 does not apply, the Contractor agrees:
(a) to obtain from each author a written consent which extends directly or
indirectly to the performance of the Permitted Acts by ACMA or any person
claiming under or through ACMA (whether occurring before or after the
consent is given); and
(b) on request – to provide the executed original of any such consent to ACMA.
13.4 The Contractor acknowledges that its attention has been drawn to ACMA’s general
policies or practices regarding Moral Rights as specified in Item B of Schedule 1.
13.5 This clause 13 does not apply to any ACMA Material incorporated in the Contract
Material.

14. ACCESS TO ACMA PREMISES AND COMPLIANCE WITH ACMA

POLICIES
14.1 The Commonwealth shall, and shall ensure that ACMA does, during the period of
this Contract, provide access to ACMA premises for persons approved under clause
7, as reasonably necessary for the Contractor’s performance of its obligations under
this Contract.
14.2 The Commonwealth may, or ACMA on behalf of the Commonwealth may, by
notice to the Contractor, withdraw access rights to any ACMA premises, at any
time, for any period.
14.3 The Contractor must, when using ACMA’s premises or facilities, comply with all
reasonable directions and ACMA procedures relating to occupational health
(including ACMA’s smoke free work place policy), safety and security in effect at
those premises or in regard to those facilities, as notified by ACMA or as might
reasonably be inferred from the use to which the premises or facilities are being
put.
14.4 The Contractor must comply with its obligations, and ensure that any
Subcontractor complies 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 Affirmative Action as
an employer currently not complying with that Act.
14.5 The Contractor must comply with all reasonable and appropriate security
requirements relating to the custody of, and access to, Material wherever such
Material is held.

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15. INDEMNITY
15.1 Subject to the provisions of this Contract, the Contractor shall at all times
indemnify and hold harmless the Commonwealth and ACMA, its officers,
employees and agents (in this subclause referred to as 'those indemnified’) from
and against:
(a) any loss (including legal costs and expenses on a solicitor/own client basis), or
liability, suffered or 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; and
(b) any loss or damage to property of the Commonwealth (including ACMA
Material);
where such loss or liability was caused by any breach of this Contract, or any
wilful, unlawful or negligent act or omission of the Contractor, its officers,
employees, agents or Subcontractors in connection with this Contract.
15.2 The Contractor’s liability to indemnify the Commonwealth and ACMA under
subclause 15.1 shall be reduced proportionally to the extent that any act or
omission of the Commonwealth or ACMA or its officers, employees or agents
contributed to the loss or liability.
15.3 The right of the Commonwealth and ACMA to be indemnified under this clause 15
is in addition to, and not exclusive of, any other right, power or remedy provided
by law.
15.4 This clause 15 shall survive the expiration or termination of this Contract.

16. INSURANCE
16.1 The Contractor shall, for so long as any obligations remain in connection with this
Contract, effect and maintain insurance as specified in Item F of Schedule 1.
16.2 Whenever requested, the Contractor shall provide the Commonwealth with a copy
of any insurance policy effected in accordance with subclause 16.1 and a certificate
of currency.

17. CONFLICT OF INTEREST

17.1 In this clause 17, ‘conflict’ means any matter, circumstance, interest or activity
affecting the Contractor (including its personnel) which may or may appear to
impair the ability of the Contractor to provide the Services to the Commonwealth,
for the benefit of ACMA, diligently and independently.
17.2 The Contractor warrants that, to the best of its knowledge after making diligent
inquiry, at the date of signing this Contract no conflict with the interests of ACMA
exists or is likely to arise in the performance of its obligations under this Contract
by itself or by any of its officers, employees, agents or Subcontractors.
17.3 If during the term of this Contract a conflict of interest arises, or appears likely to
arise, the Contractor undertakes to notify ACMA immediately in writing and to
take such steps as ACMA may reasonably require to resolve or otherwise deal with
the conflict. If the Contractor fails to notify ACMA 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 22.

page 14
17.4 The Contractor shall not, and shall ensure that any officer, employee, agent or
Subcontractor of the Contractor 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 Contractor in providing the Services to the Commonwealth, for the benefit of
ACMA, fairly and independently.

18. ACCESS TO CONTRACTOR’S PREMISES

18.1 The Contractor shall at all reasonable times give to the Project Officer or to any
persons authorised in writing by the Project Officer, access to premises occupied
by the Contractor where the Services are being undertaken and shall permit those
persons to inspect and copy documentation and records, however stored, in the
Contractor’s possession or control including any ACMA Material, Contract
Material or other Material relevant to the Services.
18.2 The Contractor shall ensure that the provisions of any subcontract provide to the
Project Officer, and persons authorised by the Project Officer, similar access to
Subcontractor’s premises and records in connection with the provision of the
Services.

19. AUDITOR-GENERAL
19.1 The Auditor-General, or a delegate of the Auditor-General, may for the purpose of
performing the Auditor-General’s statutory functions, at reasonable times and on
giving reasonable notice to the Contractor:
(a) require the provision by the Contractor, its employees, agents or
Subcontractors, of records and information which are directly related to this
Contract;
(b) have access to the premises of the Contractor for the purpose of inspecting and
copying documentation and records, however stored, in the custody or under
the control of the Contractor, its employees, agents or Subcontractors, which
are directly related to this Contract; and where relevant
(c) inspect any ACMA Material held on the premises of the Contractor.
19.2 The Contractor shall ensure that any subcontract entered into for the purposes of
this Contract contains an equivalent clause granting the rights specified in this
clause 19.
19.3 This clause 19 applies for the term of this Contract and for a period of five years
from the date of expiration or termination of this Contract. The Contractor must
ensure that any records and documentation related to this Contract are maintained
for a similar period.

20. NEGATION OF EMPLOYMENT, PARTNERSHIP AND AGENCY

20.1 The Contractor shall not represent itself, and shall ensure that its officers,
employees, agents and Subcontractors do not represent themselves, as being an
officer, employee, agent or partner of the Commonwealth or ACMA, or as
otherwise able to bind or represent the Commonwealth or ACMA.
20.2 The Contractor shall not by virtue of this Contract be or for any purpose be taken
to be an officer, employee, agent or partner of the Commonwealth or ACMA, or as
having any power or authority to bind or represent the Commonwealth or ACMA.

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21. TERMINATION AND REDUCTION
21.1 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 shall be
liable only for:
(a) payments under the payment provisions of this Contract for services rendered
before the effective date of termination; and
(b) subject to subclauses 21.3 and 21.4 any reasonable costs incurred by the
Contractor and directly attributable to the termination or partial termination of
this Contract.
21.2 Upon receipt of a notice of termination, the Contractor shall:
(a) stop work as specified in the notice;
(b) take all available steps to minimise loss resulting from that termination and to
protect ACMA Material and Contract Material; and
(c) continue work on any part of the Services not affected by the notice.
21.3 In the event of partial termination, the Commonwealth’s liability to pay fees
specified in Item D of Schedule 1 shall, in the absence of agreement to the
contrary, abate proportionately to the reduction in the Services.
21.4 The Commonwealth shall not be liable to pay compensation in an amount which
would, in addition to any amounts paid or due, or becoming due, to the Contractor
under this Contract, together exceed the fees specified in Item D of Schedule 1.
The Contractor shall not be entitled to compensation for loss of prospective profits.

22. DEFAULT
22.1 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 subclause 22.2, 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.
22.2 Where the default is capable of being remedied, a party shall not exercise its rights
of termination under subclause 22.1 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.
22.3 The Commonwealth may, by notice in writing, terminate this Contract immediately
(but without prejudice to any right of action or remedy which has accrued or which
may accrue in favour of either party) if the Contractor:
(a) being a corporation, comes under one of the forms of external administration
referred to in Chapter 5 of the Corporations Act 2001, or an order has been
made for the purpose of placing the corporation under external administration;
or
(b) being an individual, becomes bankrupt or enters into a scheme of arrangement
with creditors.

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23. WAIVER
23.1 A waiver by a party in respect of any breach of a condition or provision of this
Contract shall not be deemed to be a waiver in respect of any continuing or
subsequent breach of that provision, or breach of any other provision.
23.2 A failure or delay by a party to exercise any right or remedy it holds under this
Contract or at law does not operate as a waiver of that right.
23.3 A single or partial exercise by a party of any right or remedy it holds under this
Contract or at law does not prevent the party from exercising the right again or to
the extent it has not fully exercised the right.

24. COMPLIANCE WITH LAW

24.1 The Contractor shall in carrying out the Services for this Contract, comply with all
relevant legislation of the Commonwealth (including the Crimes Act 1914,
Criminal Code Act 1995, Racial Discrimination Act 1975, Sex Discrimination Act
1984, Disability Discrimination Act 1992 and Equal Opportunity for Women in the
Workplace Act 1999), or of any State, Territory or local authority. The Contractor
shall also comply with the Public Service Act 1999 in regard to behaviour, Code of
Conduct and APS Values.

25. ENVIRONMENTAL PROTECTION

25.1 The Contractor will cooperate with ACMA in ensuring that the Services are
supplied in a manner which avoids or minimises damage to the environment. For
the purposes of this subclause 25.1, damage to the environment includes any
reduction in the quality, productivity and amenity of the land, waters or air on or
off an ACMA location and any threat to the sustainability of any animal, plant or
other biological species.
25.2 The Contractor must not, in providing the Services, use any substance which is
proscribed by the Ozone Protection and Synthetic Greenhouse Gas Management
Act 1989, without the prior written consent of the Project Officer. The
Commonwealth may reject Services offered by the Contractor for the benefit of
ACMA using an ozone-depleting substance.
25.3 When carrying out work in performance of this Contract at ACMA locations, the
Contractor is required to:
(a) comply with ACMA’s energy, recycling, and waste management policy
guidelines, copies of such guidelines to be provided to the Contractor;
(b) participate in, and actively support, any existing or new energy efficiency
improvement programs which relate to the scope of activities covered by this
Contract; and
(c) use energy and office resources efficiently at all times in carrying out such
work.

26. HAZARDOUS SUBSTANCES

26.1 For the purposes of this clause 26, ’Hazardous Substance’ means a substance,
which by its chemical and physical properties, has the potential through being used

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 at work to harm the health or safety of persons in or near the workplace, as
identified by the National Occupational Health and Safety Commission.
26.2 The Contractor must not use in the performance of the Services, nor introduce or
store at ACMA locations any Hazardous Substance except where necessary for the
performance of this Contract, and after the prior written consent of the Project
Officer, other than those Hazardous Substances approved for use or storage within
an ACMA location by the Project Officer prior to the Effective Date. Any
Hazardous Substances which cannot be avoided are to be fully identified to users
and handlers, and the nature and extent of the associated hazard clearly displayed.
26.3 The Contractor must, in respect of each Hazardous Substance for which approval
has been given pursuant to subclause 26.2:
(a) provide full details to the Project Officer of that substance (including location,
protective covering or packaging provided and other relevant details) in the
format reasonably required by the Project Officer;
(b) ensure that all documentation, including (without limitation of generality) that
related to operation, maintenance, assembly, shipping and handling, is clearly
written to identify the presence and nature of the hazard;
(c) ensure that all goods, equipment and materials containing that substance bear
appropriate labels which clearly identify the nature of the substance, its
associated hazards and appropriate safeguards;
(d) comply with all relevant legislation of the Commonwealth or of a State,
Territory or local authority and with all industry standards and practices that
relate to the safe usage, storage, control or disposal of Hazardous Substances;
and
(e) be responsible for imposing and enforcing the obligations set out in this clause
26 on its Subcontractors, as well as for ensuring the observance of those
obligations by its servants, employees and agents and those of its
Subcontractors.
26.4 The Contractor must promptly (and no later than 7 days after discovery) advise the
Project Officer if it becomes aware of a non-hazardous substance which could be
substituted for a Hazardous Substance without significant detriment to the
performance of the Services.
26.5 In no circumstances may the performance of the Services give rise to the emission
of gases, liquids, solids, electromagnetic radiation, heat or noise which could be
detrimental to personnel, the environment or the operation of other equipment,
except where this is consistent with the performance of the Services and is within
normal tolerances as stipulated in the relevant industry standards.

27. DISPUTE RESOLUTION

27.1 Subject to subclause 27.4, before resorting to external dispute resolution
mechanisms, the parties shall 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.
27.2 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

page 18
 the subject of court proceedings or may be submitted to some alternative dispute
resolution mechanism as may be agreed in writing between the parties.
27.3 Notwithstanding the existence of a dispute, each party shall continue to perform its
obligations under this Contract.
27.4 A party may commence court proceedings relating to any dispute arising from this
Contract at any time where that party seeks urgent interlocutory relief.
27.5 This clause 27 shall survive the expiration or termination of this Contract.

28. ASSIGNMENT AND NOVATION

28.1 The Contractor shall not assign, in whole or in part, its rights and obligations under
this Contract without the prior written approval of the Commonwealth.
28.2 The Contractor shall not consult with any other person or body for the purpose of
entering into an arrangement which will require novation of this Contract without
first consulting the Commonwealth.
28.3 The Commonwealth will not withhold approval of an assignment to a wholly
owned subsidiary of the Contractor if:
(a) the proposed assignee is sufficiently capitalised to meet all of the Contractor’s
obligations under this Contract, including indemnities;
(b) the Specified Personnel continue to provide the Services, subject to the terms
of this Contract;
(c) the Contractor guarantees the performance of this Contract by the assignee and
any liability on the part of the assignee arising under this Contract;
(d) the proposed assignee fully complies with all criteria applied to the Contractor
as a tenderer for provision of the Services; and
(e) the Contractor provides to the Commonwealth all information reasonably
required to determine compliance under this subclause 28.3.

29. SEVERABILITY
29.1 Each provision of this Contract and each part thereof shall, unless the context
otherwise necessarily requires it, 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) shall
be severed and the remainder shall be read and construed as if the severable
provision or part had never existed.

30. APPLICABLE LAW

30.1 This Contract shall be governed by and construed in accordance with the laws in
force in the Australian Capital Territory, and the parties agree that the Courts of
that Territory shall have jurisdiction to entertain any action in respect of, or arising
out of, this Contract.

31. NOTICES
31.1 Any notice, request or other communication to be given or served pursuant to this
Contract shall be in writing and dealt with as follows:

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 (a) if given by the Contractor to the Commonwealth or ACMA - addressed and
forwarded to ACMA for the attention of the Project Officer at the address
specified in Item G of Schedule 1 or as otherwise notified by the Project
Officer;
(b) if given by the Commonwealth or ACMA to the Contractor - signed by the
Project Officer and addressed and forwarded to the Contractor at the address
specified in Item G of Schedule 1 or as otherwise notified by the Contractor
under subclause 8.2.
31.2 Any such notice, request or other communication shall be delivered by hand or sent
by pre-paid security post, facsimile or email, to the address of the party to which it
is sent.
31.3 Any notice, request or other communication will be deemed to be received:
(a) if delivered personally, on the date of delivery;
(b) if sent by prepaid security post, on the day that the acknowledgment of
delivery is completed by the recipient;
(c) if sent by facsimile, on the business day next following the day of dispatch
provided that the sender receives an "OK" code in respect of the transmission
and is not notified by the recipient by close of business of the next business
day following the day of dispatch that the transmission was illegible; and
(d) if sent by email, when the email enters an information system accessible to the
recipient.

32. SURVIVAL
32.1 Unless the contrary intention appears, the expiration or termination of this Contract
will not affect the continued operation of any provision relating to:
(a) licensing of Intellectual Property;
(b) Confidential Information;
(c) protection of Personal Information;
(d) an indemnity;
(e) audit;
(f) dispute resolution; or
(g) any other provision which expressly or by implication from its nature is
intended to continue.

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 SCHEDULE 1
OBLIGATIONS AND SERVICES TO BE PERFORMED

CONSULTANCY COMMISSION No. 05/ACMA [ ]

A. Services (see subclauses 1.1, 2.1 and 5.3)

The Services are for the:
[Include the title of the Services and a complete and detailed statement of work to be
undertaken.

Give a full description of the Contractor’s obligations, work to be performed, expected

outcomes and clear performance measures by which standards can be tested.

Ensure that particulars set out here are consistent with the body of this Contract, since
this Contract provides that the Contract prevails over the Schedule Items to the extent of
any inconsistency.]

B. Material

Contract Material (see subclause 1.1)

The following Contract Material is required to be produced and delivered by the
Contractor:
[Specify:

(a) the nature and extent of the Contract Material that must be produced and
delivered (eg. a report, interim reports, plans, models, specifications, etc.);

(b) the form in which the Material is to be produced (eg. documents, floppy
disk, CD ROM, DVD or other media);

(c) any equipment necessary to access the Material; and

(d) the manner and timing of delivery of intermediate and final stages, if this is
not specified elsewhere.

It is important to include all Material here because otherwise it may be difficult for the
Commonwealth to acquire ownership of Intellectual Property rights in Material unless:

(a) it is listed here; or

(b) it is clearly created for the purposes of this Contract.]

ACMA Material (see subclauses 1.1 and 9.1)

The Commonwealth shall ensure that ACMA shall provide the following Material to the
Contractor for the purposes of this Contract:
[Specify.]

Use of ACMA Material (see subclauses 9.4 and 9.6)

page 21
The Contractor shall not, without the prior written approval of the Project Officer:
(a) use ACMA Material other than for the purposes of this Contract;
(b) modify ACMA Material;
(c) transfer possession or control of ACMA Material to a third party, including a
Subcontractor; or
(d) communicate or divulge ACMA Material to any third party.

Intellectual Property (see subclauses 1.1 and 10.2)

[Specify.]

Moral Rights (see subclauses 13.1 and 13.4)

[Nil or Specify.]

C. Time-frame (see subclause 2.3)

Term of Contract
Commencement Date: ……… ……… 20..
Expiration Date: ……… ……… 20..
[Set out the time-frame for provision of the Services (including the delivery of Contract
Material) specifying all relevant dates (eg, commencement, progress or interim stages and
completion).

If delivery of the Contract Material is required in stages, provide a timetable setting out
each stage (specifying what Contract Material must be delivered at what time in each
stage)

In some cases it may be appropriate to specify dates by reference to acceptance of

previous milestones or in some other relative way.]

Variation of Contract Term

The Commonwealth will have the right, upon written notice to the Contractor, to extend
the term of this Contract for a further period of [ ] on the same terms and conditions as in
this Contract.

Hours / days / key dates (where applicable)

[Specify.]

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D. Fees, Allowances and Assistance (see subclause 4.1)

Fees (see subclauses 3.1, 21.3 and 21.4)

Basis of calculation of fees

The fees payable to the Contractor are:
$ [ ] per hour or $ [ ] per week/calendar month, etc.

Timing of Payments (see subclause 3.2)

Subclause 3.2 provides that the Contractor shall be paid monthly in arrears.

Number of days after receipt of properly completed invoice that an invoice is payable
30 days.

Total Amount Payable Under Contract

[Modify as required.] The total amount payable to the Contractor under this Contract shall
not exceed $ [ ] without the prior written approval of the Project Officer.
If additional resources are required to meet the needs of the deliverables and timeline,
these will be provided on a time and materials basis after agreement has been reached with
the Commonwealth.

Allowances and Costs (see subclause 3.1)

[Modify as required.]
Approved out of pocket expenses will be reimbursed to the Contractor at cost. Claims
should clearly show details of expenses actually incurred, receipts are to be supplied where
practical.
If applicable, travelling expenses will be reimbursed at cost on production of receipts, the
maximum claimable amount will be the total of the current APS non-SES accommodation
and Travelling Allowance. Receipts for air tickets, accommodation, etc will be required
for acquittal and should be submitted with invoices. Air travel will be reimbursed at the
cost of economy class fares for domestic travel and business class fares for international
travel unless prior approval has been given for a higher class of travel by the ACMA
Project Officer. Private motor vehicle allowance may be paid at current APS non-SES
rates where the Contractor or Specified Personnel are required to use their own car for
official travel and the ACMA Project Officer has approved the payment.
In most circumstances, payments for Specified Personnel will be direct to the contracted
company or body corporate, not individuals.

Payment Arrangements (see subclause 3.7)

The Contractor’s Nominated Bank Account for payments is as follows:
Name of Bank: [Specify Bank]
Physical Address of Bank: [Specify exact physical address]
Bank BSB: [Specify 6 digit number]

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Account Name: [Specify under whose exact name is the Bank Account]
Account Number: [Specify correct number]

Facilities and Assistance (see subclause 3.1)

[Modify as required.]
The Commonwealth shall, and shall ensure that ACMA does, provide the following
facilities free of charge to the Contractor if reasonably required for the performance of the
Services:
(a) office accommodation at ACMA premises that is reasonably required by the
Contractor’s personnel for the performance of the Services;
(b) such normal office services and facilities at ACMA premises as are reasonably
required by the Contractor’s personnel for the performance of the Services; and
(c) such magnetic or optical media and consumables at ACMA premises as are
reasonably required by the Contractor’s personnel for the performance of the
Services, other than specialised materials.

Invoice Procedures (see subclauses 3.3 and 3.4)

The due date for payment will be 30 days after receipt of a correctly rendered invoice.
The invoice shall be forwarded by the Contractor to the Project Officer and shall include
the following information:
(a) Contract Number 05/ACMA [ ];
(b) title of Services; and
(c) name of Project Officer.
Invoices must not state that they are due and payable other than in accordance with the
number of days for payment after receipt of invoice specified in this Schedule 1.

E. Specified Personnel (see subclauses 1.1 and 7.1)

Specified Personnel to be engaged in the Services are as follows:
[Specify details of any particular individuals nominated to undertake and perform the
Services or specified portions of those Services, or to provide particular Contract
Material.

As appropriate, identify any personnel who are employees of a Subcontractor rather than
the Contractor.]
F. Insurance (see subclause 16.1)
The Contractor shall, for so long as any obligations remain in connection with this
Contract, effect and maintain:
(a) workers’ compensation insurance for an amount required by the applicable law;
(b) public liability insurance for an amount of not less than Twenty Million Dollars ($20
million); and
(c) professional indemnity insurance for an amount of not less than Ten Million Dollars
($10 million).

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The Contractor should ensure that copies of such insurance policies, or certificates of
currency, are made available to the Project Officer for sighting if requested.

G. Addresses for Service of Notices

Project Officer (see subclause 1.1)

The Project Officer shall be:
[Insert details.]

Ms/r
Telephone: (0.)
Email:

Commonwealth and ACMA Address for Service of Notices (see subclause 31.1)
Any letters or notices from the Contractor to the Commonwealth or ACMA shall be
addressed as follows:
[Insert details.]

Ms/r
(Title)
(Area)
Australian Communications and Media Authority
(Postal Address)
Facsimile: (0.)
Email:

Contractor’s Address for Service of Notices (see subclause 31.1)

Any letters or notices from the Commonwealth or ACMA to the Contractor shall be
addressed as follows:
[Insert details.]

Ms/r
(Title)
(Area)
(Name of Contractor)
(Postal Address)

Facsimile: (0 )
Email:

page 25
 SCHEDULE 2
DEED OF CONFIDENTIALITY, PRIVACY AND OWNERSHIP OF
INTELLECTUAL PROPERTY RIGHTS

BY THIS DEED DATED THE ................... day of ................... 2005

IN FAVOUR OF

COMMONWEALTH OF AUSTRALIA represented by the Chief Executive Officer of

the Australian Communications and Media Authority, a body corporate established under
the Australian Communications and Media Authority Act 2005, ABN 55 386 169 386
(“the Commonwealth”)

AND

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY, a body

corporate established under the Australian Communications and Media Authority
Act 2005, ABN 55 386 169 386 (“ACMA”)

MADE BY

[CONTRACTOR’S NAME], whose registered office is at [Contractor’s Address],

ABN, ACN (“the Contractor”) [Or if an OFFICER, EMPLOYEE, AGENT OR
SUBCONTRACTOR of the Contractor replace with required details and also
replace references to “the Contractor” in this Deed accordingly, except in Recital
A.]

Recitals:

A. [Insert Contractor’s details, ABN and ACN], has entered into a contract
with the Commonwealth (“the Contract”) on [Insert date of Contract] for the
provision to the Commonwealth, for the benefit of ACMA, of [Insert brief
description of services] (“the Services”).
B. In the course of the Contractor performing the Services, the Contractor may:
(i) become aware of information, belonging to or in the possession of
ACMA (including information of the Commonwealth), that is
confidential or that is personal information under the Privacy Act 1988
(Cth); and
(ii) create Intellectual Property Rights.
C. Improper use or disclosure of that information would severely damage
ACMA’s ability to perform its governmental/statutory functions.
D. It is the Contractor’s intention to take all reasonable steps (including the
execution of this Deed) to ensure that confidential information of ACMA
(including confidential information of the Commonwealth) is kept
confidential and that personal information is protected.

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E. It is the Contractor’s intention that all Intellectual Property Rights arising
from the performance of the Services be assigned to the Commonwealth
solely.

COVENANTS OF THIS DEED:

1. Recitals
1.1 The Contractor acknowledges the truth and accuracy of the Recitals in every
particular.
2. Interpretation
2.1 Definitions
In the interpretation of this Deed unless the contrary intention appears or the
context otherwise requires or admits the following expressions will have the
following meanings:
“confidential information” means information that:
(a) is by its nature confidential;
(b) is designated by ACMA or the Commonwealth as confidential; or
(c) the Contractor knows or ought to know is confidential;
and includes:
(d) information comprised in or relating to any Intellectual Property Rights of the
Commonwealth that are used by ACMA;
(e) any information relating to the financial position of ACMA and in
particular information relating to the accounts and records of ACMA
and any other matter that does or may affect the financial position or
reputation of ACMA;
(f) information relating to the internal management and structure of
ACMA, and in particular information relating to the personnel, policies
and strategies of ACMA;
(g) any information about the Contract or other contracts associated with
the Contract and any information of ACMA which the Contractor has
accessed (other than information referred to in paragraphs (d), (e) and
(f)) that has any actual or potential commercial value to the
Commonwealth in relation to ACMA or to the person or corporation
which supplied the commercial information;
(h) any information relating to the policies, strategies, practices and
procedures of ACMA;
(i) any information in ACMA's possession relating to the Australian Public
Service or ACMA's clients or suppliers, and like information;
but does not include information which:
(j) is or becomes public knowledge other than by breach of this Deed or by
any other unlawful means;
(k) is in the possession of the receiving party without restriction in relation
to disclosure prior to the date of receipt from the disclosing party;

page 27
 (l) has been independently developed or acquired by the receiving party; or
(m) is in respect of ideas, concepts, know-how, techniques or methodologies
where disclosure is permitted under the Contract;
“Intellectual Property Rights” includes all copyright and neighbouring rights, all
rights in relation to inventions (including patent rights), plant varieties, registered
and unregistered trademarks (including service marks), registered designs,
confidential information (including trade secrets and know how) and circuit
layouts, and all other rights resulting from intellectual activity in the industrial,
scientific, literary or artistic fields;
“notice” means notice in writing given in accordance with this Deed;
“personal information” means, for the purposes of the Privacy Act 1988 (Cth) and this
Deed, 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;
“writing” means any mode of representing or reproducing words, figures, drawings
or symbols in a visible form.
2.2 General
Unless the contrary intention appears:
(a) monetary references are references to Australia currency;
(b) the clause and subclause headings are for convenient reference only and
have no effect in limiting or extending the language of the provisions to
which they refer;
(c) a cross reference to a clause number is a reference to all its subclauses;
(d) words in the singular number include the plural and vice versa;
(e) words importing a gender include any other gender;
(f) a reference to a person includes a partnership and a body whether
corporate or otherwise;
(g) a reference to a clause or subclause is a reference to a clause or
subclause of this Deed; and
(h) where a word or phrase is given a particular meaning, other parts of
speech and grammatical forms of that word or phrase have
corresponding meanings.
3. Non Disclosure
3.1 The Contractor shall not disclose confidential information to any person
without the prior written consent of ACMA.
3.2 The Contractor acknowledges that ACMA may grant or withhold its consent
in its absolute and unfettered discretion.
3.3 The Contractor acknowledges that if ACMA grants its consent, it may
impose conditions on that consent. In particular, but without limiting the
generality of the preceding sentence, ACMA may require that the

page 28
 Contractor procure the execution of a Deed in these terms by the person to
whom the Contractor proposes to disclose the confidential information.
3.4 The Contractor acknowledges that if ACMA grants consent subject to
conditions, the Contractor must comply with those conditions.
3.5 The obligations of the Contractor under this Deed will not be taken to have
been breached where the confidential information is legally required to be
disclosed.
4. Restriction on Use
4.1 The Contractor will use the confidential information only for the purpose of
its dealings with ACMA (whether directly or indirectly).
5. Privacy
5.1 The Contractor undertakes:
(a) not to access, use, modify, disclose or retain any personal information the
Contractor has acquired through the performance of the Services, except
for the purpose of performing those Services; and
(b) in addition to any direction as to particular measures specified by
ACMA, take all reasonable measures to ensure that any personal
information held in connection with the Contract is protected against
loss, unauthorised access, use, modification or disclosure and against
other misuse.
5.2 The Contractor acknowledges that:
(a) any unauthorised access, modification or impairment, including
destruction, alteration, addition or impediment to access or usefulness, of
personal information stored in any ACMA computer is an offence under
Part 10.7 of the Criminal Code Act 1995 which may attract a substantial
penalty, including imprisonment; and
(b) the publication or communication by the Contractor of any fact or
document which has come to his or her or its knowledge or into his or
her or its possession or custody by virtue of the performance of the
Contract (other than to a person to whom the Contractor is authorised to
publish or disclose the fact or document) may be an offence under
sections 70 or 79 of the Crimes Act 1914, punishment for which may
involve imprisonment.
5.3 The undertakings made in this clause 5 will survive the termination or expiry
of the Contract.
6. Survival
6.1 This Deed will survive the termination or expiry of the Contract.
7. Powers of ACMA
7.1 The Contractor acknowledges that ACMA may demand (without needing to
reduce the demand to writing) the delivery up to ACMA of all documents in
the possession or control of the Contractor containing confidential
information or personal information or which are records or documents of
ACMA.

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7.2 The Contractor must immediately comply with a demand under this clause 7.
7.3 The Contractor acknowledges that if ACMA makes a demand of the type in
this clause 7, and the Contractor has placed or is aware that documents are
beyond his or her or its possession or control, then the Contractor must
provide full particulars of the whereabouts of the documents, and the
identity of the person in whose custody or control they lie.
7.4 In this clause 7, "documents" includes any form of storage of information,
whether visible to the eye or not.
7.5 The Contractor acknowledges that the Commonwealth and ACMA may take
legal proceedings against the Contractor or third parties if there is any
actual, threatened or suspected breach of this Deed, including proceedings
for an injunction to restrain such breach.
8. Conflict of Interest
8.1 The Contractor warrants that before entering into this Deed it has disclosed
to ACMA all the past, current and anticipated interests of the Contractor
which may conflict with or restrict the Contractor in performing Services
under the Contract for the benefit of ACMA fairly and independently.
8.2 If during the term of the Contract a conflict of interest arises, or appears
likely to arise, the Contractor undertakes to notify ACMA immediately in
writing and to take such steps as ACMA may reasonably require to resolve
or otherwise deal with the conflict.
9. Intellectual Property
9.1 The Contractor agrees that the Commonwealth will own all Intellectual
Property Rights arising out of the performance by the Contractor of the
Services and the Contractor irrevocably assigns to the Commonwealth all
Intellectual Property Rights acquired by the Contractor arising from, or which
might arise in the future from, the performance of the Services.
10. No Exclusion of Law or Equity
10.1 This Deed must not be construed to exclude the operation of any rule or
principle of law or equity intended to protect and preserve the
confidentiality of the confidential information.
11. Waiver
11.1 No waiver by the Commonwealth or ACMA of one breach of any obligation
or provision of this Deed will operate as a waiver of another breach of the
same or of any other obligation or provision of this Deed.
11.2 None of the provisions of this Deed will be taken either at law or in equity
to have been varied, waived, discharged or released by the Commonwealth
or ACMA unless by its express consent in writing.
12. Remedies Cumulative
12.1 The rights and remedies provided under this Deed are cumulative and not
exclusive of any rights or remedies provided by law or equity or any other
such right or remedy.

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12.2 Subject to the other covenants of this Deed, the rights and obligations of the
Contractor pursuant to this Deed are in addition to and not in derogation of
any other right or obligation of the Contractor under any other deed or
agreement to which the Contractor is a party.
13. Variations and Amendments
13.1 The Contractor acknowledges that no term or provision of this Deed may be
amended or varied unless agreed to by the Commonwealth and ACMA and
such amendment or variation is reduced to writing and signed by the
Contractor in the same manner as this instrument.
14. Applicable Law
14.1 This Deed shall be governed and construed in all respects in accordance
with the law in force in the Australian Capital Territory from time to time.

EXECUTED AS A DEED
Signed for and on behalf of
[Insert NAME and ACN/ABN details)
by authority of the directors

(Print name of Director) (Signature of Director)

(Print name of Director/Secretary) (Signature of Director/Secretary)

If a sole Director who is also the sole Secretary

(Print name of Director/Secretary) (Signature of Director/Secretary)

in the presence of:

)
)
.................................................... ) ..............…………...........….........
(Print witness name) (Signature of witness)

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IN WITNESS the parties have executed this Contract on the day and year first written
on page three (3).

SIGNED for and on behalf of the

COMMONWEALTH OF AUSTRALIA
represented by the Chief Executive Officer of the
Australian Communications and Media Authority,
ABN 55 386 169 386

by its delegate
.................................................................
(Insert delegate name) )

.................................................................
(Insert Title) )
.................................................................
(Insert Branch/Section) ) .............................

in the presence of:

)
)
................................................................. ) ..............................
(Print witness name) (Signature of witness)

Signed for and on behalf of

(Insert name and ACN/ABN details)

by authority of the directors

(Print name of Director) (Signature of Director)

and

(Print name of Director/Secretary) (Signature of Director/Secretary)

(If a sole director who is also the sole secretary, please use the lower boxes and annotate ‘Sole Director/Secretary’)

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