Vous êtes sur la page 1sur 20

Head Agreement

Deed of Agreement dated....................................................... 20 .........................................................

Between ..................................................................................................... [insert name of the beneficiary] And ..................................................................................................... ACN/ABN....................................... [insert name and ACN/ABN of the Contractor] (the Contractor)

Recitals This Head Agreement sets out mutually agreed terms and conditions under which the Contractor may enter into Contracts with Customers for the supply of information technology and telecommunications products and services. This Head Agreement may apply, but is not limited to, circumstances in which the Contractor is an endorsed supplier under the Australian Governments Endorsed Supplier Arrangement (and thereby meets the minimum requirements for supplying information technology Products and Services to the Commonwealth which apply under that Arrangement). Definitions, Interpretation and Scope 1. Definitions In this Agreement, unless the contrary appears: Agency Means: (a) a body corporate or an unincorporated body established or constituted for a public purpose by Commonwealth, State or Territory legislation, or an instrument made under that legislation (including a local authority); a body established by the Governor-General, a state government, or by a minister of state of the Commonwealth, a State or a Territory; or

(b)

(c) Contract

an unincorporated company over which the Commonwealth, a State or a Territory exercises control;

means an agreement between the Contractor and a Customer, formed in accordance with an agreed ordering procedure, for the supply of a Service or Product; means the Commonwealth Government Department or Agency responsible from time to time for the administration of this Head Agreement; means a Department, an Agency or, where approved in writing by the Contract Authority and the Contractor, an Eligible non-Government Body, other person or body, as specified in a Contract, which requires a Product or Service; means the Commonwealth, a State or Territory, as the case may be, represented by a department of state, or a department of the parliament, of the Commonwealth, that State or Territory or an administrative unit thereof;

Contract Authority

Customer

Department

Eligible non-Government Body means a body (including a private school) which is: (a) (b) Head Agreement Product directly or indirectly, partially or entirely funded by the Commonwealth, a State or Territory; and non-profit making;

means all parts of this deed of agreement between the Contract Authority and the Contractor, including the schedules; means an information technology or telecommunications product which the Contractor undertakes to supply, or supplies, to a Customer under a Contract; means an information technology service which the Contractor undertakes to supply, or supplies, to a Customer under a Contract.

Service

1.1

Interpretation

In this Agreement, unless the contrary intention appears: a) clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer; b) words in the singular number include the plural and vice versa; and c) 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.

1.3

Scope of Agreement

This Head Agreement records the arrangements between the Contract Authority and the Contractor under which the Contractor will offer Products and/or Services to Customers, whether in accordance with the Government Information Technology and Communications contracting framework version 4 (GITC4) or otherwise where this Head Agreement is crossreferenced. 2. Term of Agreement This Head Agreement commences on 1 October 2001 or the date the last party signs this Head Agreement, whichever is the later, and continues until 30 September 2004. 3. Supply by Resale or by Agent 3.1 Contractor's right to resupply

The Contractor warrants that it has the right to resell or on-license Products and Services supplied to Customers and sourced from third party suppliers. 3.2 Obligations of Agents and Distributors

The Contractor may offer to supply a Product or Service through an agent or distributor of the Contractor provided that: a) the agent or distributor offers to supply under the terms and conditions of the Contract; and b) the Contractor guarantees the agent or distributors performance under the Contract as if the Contract had been entered into by the Contractor. 4. No Assurance of Orders This Head Agreement does not mean that: a) the Contractor has the right to be the sole supplier of a Product or Service to the Contract Authority or a Customer; or b) any Customer will enter into a Contract with the Contractor. 5. Customer May Enforce Agreement The parties agree that a Customer (which is not a party to this Head Agreement) may take the benefit of and seek to enforce this Head Agreement in its own name. 6. Minimum Insurance Requirements 6.1 Minimum level of insurance

The Contractor will ensure that throughout the term of this Head Agreement it is insured with,

or is a beneficiary under a party with, a reputable insurance company with respect to: a) a broad form public liability insurance to the value of at least $10 million per claim; and b) where the Contractor supplies Services, professional indemnity insurance to the value of at least $5 million per claim; and c) where the Contractor supplies Products, product liability insurance to the value of at least $10 million per claim; in respect of liability for the Contractors performance under this Head Agreement. 6.2 Evidence of insurance

The Contractor will, on request, produce to the Contract Authority or any Customers with whom it has Contracts satisfactory evidence that the Contractor has effected and/or renewed insurance policies as required in clause 6.1 or that the Contractor continues to be a beneficiary under a particular insurance policy. 6.3 Absence of insurance

The Contractor will immediately advise the Contract Authority and any of its Customers if at any time during the term of this Head Agreement the Contractor ceases to have the benefit of an insurance policy as required in clause 6.1, whether through cancellation, lapse or otherwise. 7. Guarantee and Undertaking 7.1 Providing a guarantee or undertaking

If required by the Contract Authority, the Contractor will: a) arrange for a guarantor to enter into an agreement with the Contract Authority substantially in the form of an unconditional performance guarantee as attached at Schedule 1 or a conditional performance guarantee as attached at Schedule 2; or b) arrange for a guarantor to enter into an agreement with the Contract Authority substantially in the form of an unconditional and irrevocable financial undertaking as attached at Schedule 3; or c) arrange for any existing security in place for the purposes of a common use contract administered by the Contract Authority to be extended to cover Contracts formed under this Head Agreement. Without limiting the foregoing, the terms of an unconditional performance guarantee, conditional performance guarantee or financial undertaking must at all times be reasonably acceptable to the Contract Authority. The Contract Authority may require the Contractor to increase or reduce the amount of a guarantee or undertaking from time to time. 7.2 Costs of guarantee or undertaking

All charges incurred in obtaining and maintaining the guarantee or undertaking shall be borne by the Contractor.

7.3

Disclosure to Customer

The Contractor will disclose details of any performance guarantee or financial undertaking in place to a Customer upon request. 7.4 Lapse of guarantee or undertaking

The Contractor will advise the Contract Authority and any Customers with whom it has Contracts if, at any time during the term of this Head Agreement, a performance guarantee or financial undertaking required by this clause ceases to have effect for any reason, whether through cancellation, lapse or otherwise. 7.5 Discharge of guarantee or undertaking

The Contract Authority will consent to the discharge of a performance guarantee or financial undertaking if, at any time following the termination or expiry of this Head Agreement, the Contractor can demonstrate to the Contract Authority's reasonable satisfaction that there is no basis for any claim to be made against the performance guarantee or financial undertaking in the future. 8. Variation of Agreement This Head Agreement shall not be varied except by agreement in writing signed by the Contract Authority and the Contractor. 9. Applicable Law This Head Agreement shall be subject to the laws in the [insert name of appropriate jurisdiction]. 10. Assignment and Novation 10.1 No assignment without consent Neither party shall assign the whole or part of this Head Agreement without the prior written consent of the other party which shall not be unreasonably withheld. 10.2 No obligation to consent to novation Where the Contractor proposes to enter into an arrangement which will require novation of this Head Agreement, it shall consult with the Contract Authority within a reasonable period prior to the proposed novation. The Contract Authority shall not be obliged to consent to any novation. Without limiting the foregoing, the Contract Authority may reject an assignment or novation of the Head Agreement if the other party is not endorsed under the Endorsed Supplier Arrangement. 11. Waiver

The failure of either party to enforce this Head Agreement shall in no way be interpreted as a waiver of its respective rights under the Head Agreement. 12. Entire Agreement This Head Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings relating to its subject matter, whether verbal or in writing. 13. Notices 13.1 Addresses of the parties A notice or other communication is properly given or served if the party delivers it by hand, posts it or transmits it by electronic mail or facsimile, to the address of the relevant officer, marked to their attention. Address of the Contract Authority Physical address Postal address Phone number Fax number Email address Address of the Contractor Physical address Postal address Phone number Fax number Email address 13.2 Change of address Each party shall advise the other of any change in the address or the identity of the relevant officer. 13.3 Deemed receipt of communications A notice or other communication is deemed to be received if: a) sent by post, at the time it would have been delivered in the ordinary course of the post to the address to which it was sent; or

b) sent by facsimile, at the time which the facsimile machine to which it has been sent records that the communication has been transmitted satisfactorily (or, if such time is outside normal business hours, at the time of resumption of normal business hours); c) sent by electronic mail, only in the event that the other party acknowledges receipt by any means; d) sent by any other electronic means, only in the event that the other party acknowledges receipt by any means; or e) delivered by hand, the party who sent the notice holds a receipt for the notice signed by a person employed at the physical address for service. 14. Termination 14.1 Termination on notice This Head Agreement may be terminated during the term of the Agreement by either party upon giving 14 days notice of the termination to the other. 14.2 Effect of termination If this Head Agreement expires or is terminated: a) the accrued rights of the parties; and b) a Contract created under this Head Agreement remain unaffected except to the extent that the parties (and the Customer in the case of a Contract) expressly agree otherwise.

In witness whereof the parties to this Deed of Agreement have executed the Deed as at the date first written.

Signed for and on behalf of the Customer by ................................................................. [insert name of the Customer] in the presence of........................................... [insert name of witness] .......................................................................... [signature of Customer] .......................................................................... [signature of witness]

Execution by the Contractor (where the Contractor is a corporation) ...................................................................... [insert name of Contractor] ...................................................................... [insert ACN/ABN] at ................................................................... [insert name of city or town] in the State of ............................................... [insert name of state or territory] by ................................................................. [insert name of director] in the presence of .......................................... [insert name of secretary or other permanent officer] .......................................................................... [signature of director] .......................................................................... [signature of witness] [affix common seal below]

Execution by the Contractor (where the Contractor is a natural person) ...................................................................... [insert name of Contractor] at ................................................................... [insert name of city or town] by ................................................................. [insert name of director] in the presence of .......................................... [insert name of witness not a party to this Deed] ...................................................................... [insert ACN/ABN] in the State of [insert name of state or territory] .......................................................................... [signature of director] .......................................................................... [signature of witness]

Execution by the Contractor (where the Contractor is a partnership) ...................................................................... [insert name of Contractor] ...................................................................... [insert RBN, ABN or partnership number]

at ................................................................... [insert name of city or town] by ................................................................. [insert name of partner] in the presence of .......................................... [insert name of witness not a party to this Deed]

in the State of [insert name of state or territory] .......................................................................... [signature of partner] .......................................................................... [signature of witness]

Where an attorney or other agent executes this Deed or affixes a seal on behalf of a Contractor, the form of execution must indicate the source of this authority and such authority must be in the form of a deed and a certified copy thereof provided to the Customer.

Schedule 1
Unconditional Performance Guarantee (Clause 7)

Deed of Agreement dated .................................................................... 20............................................

Between ................................................................................................ [insert name of the Customer] (the Customer) And ................................................................................................ ACN/ABN............................................. [insert name and ACN/ABN of the Guarantor] (the Guarantor)

Purpose ................................................................................................ ACN/ABN............................................. [Insert name and ACN/ABN of Contractor] (the Contractor) has agreed to supply Services and/or Products to the Customers pursuant to a contract (Contract). The Guarantor agrees to provide the guarantees and indemnities stated below in respect of the Contract.

What is agreed: The Guarantor guarantees to the Customer the performance of the obligations undertaken by the Contractor under the Contract on the following terms and conditions: 1. If the Contractor (unless relieved from the performance of the Contract by the Customer or by statute or by a decision of a tribunal of competent jurisdiction) fails to execute and perform its undertakings under the Contract, the Guarantor will, if required to do so by the Customer, complete or cause to be completed the undertakings contained in the Contract. 2. If the Contractor commits any breach of its obligations, and the breach is not remedied by the Guarantor as required by this clause, and the Contract is then terminated for default, the Guarantor will indemnify the Customer against costs and expenses directly incurred by reason of such default. 3. The Guarantor will not be discharged, released or excused from this Deed of Guarantee by an arrangement made between the Contractor and the Customer with or without the consent of the Guarantor, or by any other inference arising out of the conduct between the parties, in the absence of a formal variation or release in accordance with the procedures stipulated in this Head Agreement. The obligations of the Contractor will continue in force and effect until the completion of the undertakings of this Deed of Guarantee by the Guarantor. 4. The obligations and liabilities of the Guarantor under this Deed of Guarantee will not exceed the obligations and liabilities of the Contractor under the Contracts.

5. Where the Guarantor is required to perform any obligation under the Contract in accordance with this Deed of Guarantee, the Guarantor agrees to the novation of the Contract from the Contractor to the Guarantor if requested by the Customer. 6. This Deed of Guarantee will be subject to and construed in accordance with the laws in force in the [insert name of appropriate jurisdiction]. 7. Where the Contractor has failed to perform under the Contract the obligations of the Guarantor will continue even though the Contractor has been dissolved or has been made subject to external administration procedures under Chapter 5 of the Corporations Law or any other law. 8. The rights and obligations under this Guarantee will continue until all obligations of the Contractor under the Contract have been performed, observed and discharged. 9. A notice or other communication is properly given or served if the party delivers it by hand, posts it or transmits a copy electronically (by electronic mail or facsimile) to the address last advised by one of them to the other. Where the notice is given or served electronically, the sending party can confirm receipt by any other means. The address for services of notice for a party is, in the case of the: Guarantor Physical address Postal address Phone number Fax number Email address

Contractor Physical address Postal address Phone number Fax number Email address

Customer Physical address Postal address Phone number Fax number Email address

or such other address as a party may notify to the other party in writing from time to time. A notice or other communication is deemed to be received if: (a) (b) (c) (d) delivered by hand, when the party who sent the notice holds a receipt for the notice signed by a person employed at the physical address for service; sent by post from and to an address within Australia, after three (3) working days; sent by post from or to an address outside Australia, after ten (10) working days; sent by facsimile, at the time which the facsimile machine to which it has been sent records that the communication has been transmitted satisfactorily (or, if such time is outside normal business hours, at the time of resumption of normal business hours); sent by electronic mail, only in the event that the other party acknowledges receipt by any means; or sent by any other electronic means, only in the event that the other party acknowledges receipt by any means.

(e) (f)

In witness whereof the parties to this Deed of Agreement have executed the Deed as at the date first written.

Signed for and on behalf of the Customer by ................................................................. [insert name of the Customer] in the presence of........................................... [insert name of witness] .......................................................................... [signature of Customer] .......................................................................... [signature of witness]

Execution by the Guarantor ...................................................................... [insert name of Contractor] ...................................................................... [insert ACN, ABN or other identifier] at ................................................................... [insert name of city or town] in the State of ................................................................................................................................ [insert name of state or territory and country] by ................................................................. [insert name of director] in the presence of .......................................... [insert name of secretary or other permanent officer] .......................................................................... [signature of director] .......................................................................... [signature of witness] [affix common seal below]

Where an attorney or other agent executes this Deed or affixes a seal on behalf of a Guarantor, the form of execution must indicate the source of this authority and such authority must be in the form of a deed and a certified copy thereof provided to the Customer.

Schedule 2
Conditional Performance Guarantee (Clause 7)

Deed of Agreement dated .................................................................... 20...........................................

Between ................................................................................................ [insert name of the Customer] (the Customer) And ................................................................................................ [insert name of the director] (the Guarantor)

Purpose: ................................................................................................ ACN/ABN............................................ [Insert name and ACN/ABN of the Contractor] (the Contractor) has agreed to supply Services and/or Products to the Customer pursuant to a contract (the Contract). The Guarantor agrees to provide the guarantees and indemnities stated below in respect of the Contract.

What is agreed: The Guarantor guarantees to the Customer the performance of the obligations undertaken by the Contractor under the Contract on the following terms and conditions: 1. If the Contractor (unless relieved from the performance of the Contract by the Customer or by statute or by a decision of a tribunal of competent jurisdiction) fails to execute and perform its undertakings under the Contract, the Guarantor will, if required to do so by the Customer, complete or cause to be completed the undertakings contained in the Contract. 2. If the Contractor commits any breach of its obligations, and the breach is not remedied by the Guarantor as required by this clause, and the Contract is then terminated for default, the Guarantor will indemnify the Customer against costs and expenses directly incurred by reason of such default. 3. Where the Guarantor consists of more than one legal person each of those persons agree to be bound jointly and severally by this Deed of Guarantee and the Customer may enforce this Deed of

Guarantee against all or any of the persons who constitute the Guarantor. 4. The Guarantor will not be discharged, released or excused from this Deed of Guarantee by an arrangement made between the Contractor and Customer with or without the consent of the Guarantor, or by any alteration, amendment or variation in the obligations assumed by the Contractor or by any forbearance whether as to payment, time, performance or otherwise. 5. The obligations of the Contractor will continue in force and effect until the completion of the undertakings of this Deed of Guarantee by the Guarantor. 6. The obligations and liabilities of the Guarantor under this Deed of Guarantee will not exceed: (a) (b) the obligations and liabilities of the Contractor under the Contracts; and $ [insert dollar amount].

7. This Deed of Guarantee will be subject to and construed in accordance with the laws in force in the [insert name of appropriate jurisdiction]. 8. Where the Contractor has failed to perform under the Contract the obligations of the guarantor will continue even though the Contractor has been dissolved or has been made subject to external administration procedures under Chapter 5 of the Corporations Law or any other law. 9. The rights and obligations under this Guarantee will continue until all obligations of the Contractor under the Contract have been performed, observed and discharged. 10. A notice or other communication is properly given or served if the party delivers it by hand, posts it or transmits a copy electronically (electronic mail or facsimile) to the address last advised by one of them to the other. Where the notice is given or served electronically, the sending party must confirm receipt by some other means. The address for services of notice for a party is, in the case of the: Guarantor Physical address Postal address Phone number Fax number Email address Contractor Physical address Postal address Phone number

Fax number Email address Customer Physical address Postal address Phone number Fax number Email address

or such other address as a party may notify to the other party in writing from time to time. A notice or other communication is deemed to be received if: (a) (b) (c) (d) delivered by hand, when the party who sent the notice holds a receipt for the notice signed by a person employed at the physical address for service; sent by post from and to an address within Australia, after three (3) working days; sent by post from or to an address outside Australia, after ten (10) working days; sent by facsimile, at the time which the facsimile machine to which it has been sent records that the communication has been transmitted satisfactorily (or, if such time is outside normal business hours, at the time of resumption of normal business hours); sent by electronic mail, only in the event that the other party acknowledges receipt by any means; or sent by any other electronic means, only in the event that the other party acknowledges receipt by any means.

(e) (f)

In witness whereof the parties to this Deed of Agreement have executed the Deed as at the date first written.

Signed for and on behalf of the Customer by ................................................................. [insert name of the Customer] in the presence of........................................... [insert name of witness] .......................................................................... [signature of Customer] .......................................................................... [signature of witness]

Execution by the Guarantor ...................................................................... [insert name of Contractor] at ................................................................... [insert name of city or town] by ................................................................. [insert name of director] in the presence of .......................................... [insert name of witness not a party to this Deed] ...................................................................... [insert ACN/ABN] in the State of [insert name of state or territory] .......................................................................... [signature of director] .......................................................................... [signature of witness]

Schedule 3
Unconditional Financial Undertaking (Clause 7)

Deed of Agreement dated .................................................................... 20............................................

Between ................................................................................................ [insert name of the Customer] (the Customer) And ................................................................................................ ACN/ABN............................................. [insert name and ACN/ABN of the financial institution ] (the Guarantor)

What is agreed: ...ACN/ABN .. [insert name of the Contractor and the ACN/ABN] (Contractor) ) has agreed to supply Services and/or Products to the Customer pursuant to a contract ('Contract'). The following undertakings are given in respect of the Contract: 1. The Guarantor unconditionally agrees to pay to the Customer on demand without reference to the Contractor and separate from any notice given by the Contractor to the Guarantor not to pay same, any sum or sums which may from time to time be demanded in writing by the Customer to a maximum aggregate sum of $...[insert dollar amount]. 2. The Guarantor's liability under this Undertaking will be a continuing liability until payment is made up to the maximum aggregate sum or the Customer notifies the Guarantor that this undertaking is no longer required. 3. This undertaking shall be governed by and construed in accordance with the laws in force in the [insert name of appropriate jurisdiction]. 4. A notice or other communication is properly given or served if the party delivers it by hand, posts it or transmits a copy electronically (electronic mail or facsimile) to the address last advised by one of them to the other. Where the notice is given or served electronically, the sending party must confirm receipt by any other means. The address for services of notice for a party is, in the case of the: Guarantor Physical address Postal address Phone number Fax number

Email address Contractor Physical address Postal address Phone number Fax number Email address Customer Physical address Postal address Phone number Fax number Email address

or such other address as a party may notify to the other party in writing from time to time. A notice or other communication is deemed to be received if: (a) (b) (c) (d) delivered by hand, when the party who sent the notice holds a receipt for the notice signed by a person employed at the physical address for service; sent by post from and to an address within Australia, after three (3) working days; sent by post from or to an address outside Australia, after ten (10) working days; sent by facsimile, at the time which the facsimile machine to which it has been sent records that the communication has been transmitted satisfactorily (or, if such time is outside normal business hours, at the time of resumption of normal business hours); sent by electronic mail, only in the event that the other party acknowledges receipt by any means; or sent by any other electronic means, only in the event that the other party acknowledges receipt by any means.

(e) (f)

In witness whereof the parties to this Deed of Agreement have executed the Deed as at the date first written.

Signed for and on behalf of the Customer by ................................................................. [insert name of the Customer] in the presence of........................................... [insert name of witness] .......................................................................... [signature of Customer] .......................................................................... [signature of witness]

Execution by the Guarantor ...................................................................... [insert name of Guarantor] ...................................................................... [insert ACN/ABN] at ................................................................... [insert name of city or town] in the State of ................................................................................................................................ [insert name of state or territory and country] by ................................................................. [insert name of director] in the presence of .......................................... [insert name of secretary or other permanent officer] .......................................................................... [signature of director] .......................................................................... [signature of witness] [affix common seal below]

Where an attorney or other agent executes this Deed or affixes a seal on behalf of a Guarantor, the form of execution must indicate the source of this authority and such authority must be in the form of a deed and a certified copy thereof provided to the Customer.