PARTIES: 1. Commonwealth of Australia represented by the Department of Finance and Deregulation 2. [Listed Organisation]
DEED OF AGREEMENT / MEMORANDUM OF AGREEMENT for Known Customer and Threat/Risk Organisations
Contents
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. Definitions ................................................................................................................................ 2 Interpretation ........................................................................................................................... 2 Scope of Agreement .............................................................................................................. 3 Term of Agreement ................................................................................................................ 4 Gatekeeper Listing ................................................................................................................. 4 Delivery of Services ............................................................................................................... 4 Maintaining Listing ................................................................................................................ 4 Gatekeeper Evaluators ......................................................................................................... 5 Gatekeeper Audits ................................................................................................................. 5 Amendment of Listing Requirements .............................................................................. 6 Changes to Documents ........................................................................................................ 8 Change of Circumstances ................................................................................................... 8 Management of Aggregate Commonwealth Risk ......................................................... 8 Consequences of Listing ..................................................................................................... 9 Warranties ................................................................................................................................ 9 Indemnity ................................................................................................................................10 Termination by Finance ......................................................................................................11 Termination by Listed Organisation ...............................................................................12 Termination for Convenience ...........................................................................................12 Consequences of Termination / Expiry.......................................................................12 Limitation of Liability...........................................................................................................13 Confidential Information ....................................................................................................14 Privacy .....................................................................................................................................15 Publicity...................................................................................................................................17 Intellectual Property ............................................................................................................17 Dispute Resolution ............................................................................................................18 Variation of Agreement.......................................................................................................18 Assignment and Novation .................................................................................................18 Waiver....................................................................................................................................18 Entire Agreement ...............................................................................................................18 Archives Act 1983 ................................................................................................................18 Subcontracting ......................................................................................................................19 Applicable Law ......................................................................................................................19 Conflict of Interest ...............................................................................................................19
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35. 36.
Notices .....................................................................................................................................20 Survival of Clauses ..............................................................................................................20
Schedule 1 – Agreement Details ................................................................................................... 22 1. 2. 3. Address of Department of Finance and Deregulation (Parties) .................................... 22 Address of Listed Organisation (Parties)........................................................................... 22 Type of Listing Approved to Listed Organisation (clause 5) ......................................... 22
Schedule 2 - Documents and Listing Requirements ................................................................ 23
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This deed / memorandum of agreement is made on ……………………………………………………… 1. 2. Commonwealth of Australia (Commonwealth) represented by the Department of Finance and Deregulation (Finance) of the address set out at Item 1 of Schedule 1. [Listed Organisation] (Listed Organisation) whose registered office is at the address set out at Item 2 of Schedule 1.
Recitals A. In September 2006 the Australian Government published the Gatekeeper Public Key Infrastructure (PKI) Framework (the Framework) which is designed to meet emerging business needs and reduce the cost and complexity of implementing Public Key Technology for Australian Government purposes and which is to be administered by Finance. Under the Framework, Organisations involved in providing identity verification services are Gatekeeper Listed (as either a Known Customer Organisation or a Threat / Risk Organisation) by the Gatekeeper Competent Authority after a successful evaluation against the Gatekeeper Listing Requirements to enable them to provide these Services to, or in relation to, Commonwealth Agencies. The Listed Organisation applied to obtain Gatekeeper Listing, and the evaluation of the Listed Organisation‟s operation against the relevant Listing Requirements has been successfully completed. The Gatekeeper Competent Authority has approved the Listing of the Organisation of the kind described at Item 3 of Schedule 1 to the Listed Organisation and that Listing continues subject to the terms of this Agreement. On and from the Commencement Date, the Listed Organisation is entitled to provide Services to, or in relation to, Commonwealth Agencies within the framework of this Agreement.
B.
C.
D.
E.
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The Parties agree as follows:
1.
Definitions
The terms used in this Agreement, unless the contrary intention appears, have the same meaning as in the Gatekeeper Glossary at www.gatekeeper.gov.au. For the purpose of this Agreement: Commencement Date means the date on which the Applicant for Gatekeeper Listing and the Department of Finance and Deregulation on behalf of the Commonwealth, execute the Agreement. Services means the provision by the Listed Organisation of identity verification services to a Gatekeeper accredited Certification Authority where the identity of proposed Subscribers has been established on the basis of Evidence of Identity information maintained by the Listed Organisation. Customer means a Gatekeeper accredited Certification Authority to whom the Listed Organisation supplies or proposes to supply Services (whether or not under a Contract). Documents means the documents specified in Schedule 2 to this Agreement. Gatekeeper Competent Authority means the entity which approves the Applicant‟s application for Gatekeeper Listing, as meeting the requirements for Gatekeeper Listing. The Competent Authority for the Gatekeeper PKI is the General Manager, Australian Government Information Management Office, Finance. Known Customer Organisation means an organisation Listed by Finance as having complied with the Gatekeeper Known Customer Listing requirements. A Known Customer Organisation is able to request the issuance of General Certificates for its Clients. Listed/Listing means the process whereby the Gatekeeper Competent Authority approves and publicises Known Customer and Threat and Risk Organisations to participate under the Gatekeeper PKI Framework. Relationship Organisations and associated Communities of Interest will also be Listed by Gatekeeper. Threat and Risk Organisation means an organisation Listed by Finance as having undergone an independent Threat and Risk Assessment of its internal Evidence of Identity processes which has been accepted by the Gatekeeper Competent Authority.
2. Interpretation
In this Agreement, unless the contrary intention appears: (a) (b) (c) monetary references are references to Australian dollars; clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer; a reference to a person includes a partnership and a body whether corporate or otherwise;
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(d) (e) (f) (i) (ii) (iii)
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; a reference to a clause or schedule is a reference to a clause of or schedule to this Agreement; a reference to a body, a position or an authority whether statutory or not: which ceases to exist; whose powers or functions are transferred to another body, position or authority; or which retains its powers and functions but changes its name;
is a reference to the body, position or authority which: (iv) (v) (vi) (vii) (g) replaces it; substantially succeeds to its powers or functions; has the new name; or is notified to the Listed Organisation from time to time by the Minister of State that is responsible for the body, position or authority; a reference to a website by address or location is a reference to a website located at a replacement address or location as notified to the Listed Organisation by Finance from time to time; no provision of this Agreement will be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of this Agreement or that provision; a reference to writing, or written, refers to any representation of words, figures or symbols capable of being rendered in a visible form; and words in the singular include the plural and vice versa.
(h)
(i) (j)
3.
3.1
Scope of Agreement
This Agreement sets out the terms and conditions under which the Listed Organisation has obtained and maintains Gatekeeper Listing and provides Services to, or in relation to, Customers. For the avoidance of doubt, this Agreement only applies in relation to the supply of Services, and not to any other services supplied by the Listed Organisation. Subject to clause 14.3, nothing in this Agreement prevents the Listed Organisation from providing services outside the scope of its Gatekeeper Listing to a customer other than a Customer. Any function, power or right in this Agreement given to the Commonwealth may be performed or exercised by the Gatekeeper Competent Authority or an appointee of the
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3.2 3.3
3.4
Gatekeeper Competent Authority. 3.5 The Parties agree that they will undertake their obligations and exercise their rights under this Agreement in good faith and in a spirit of cooperation.
4. Term of Agreement
4.1 This Agreement commences on the Commencement Date and, subject to this Agreement, continues from Year to Year.
5. Gatekeeper Listing
5.1 The Parties are executing this Agreement to signify that the Listed Organisation has been Gatekeeper Listed as described at Item 3 of Schedule 1, and to ensure that the Services are provided in accordance with the arrangements described in this Agreement. The Listed Organisation has met the Listing Requirements as per its Documents listed at Schedule 2.
5.2
6.
Delivery of Services
Where the Listed Organisation wishes to provide Services, it must provide the Services in accordance with the policies and procedures for managing data security and integrity, privacy and liability, as specified in Documents listed at Schedule 1, from the Commencement Date.
7. Maintaining Listing
7.1 To maintain Gatekeeper Listing, the Listed Organisation must: (a) (b) (c) continue to comply with the Listing Requirements; conduct its operations in accordance with the Listing Requirements; comply after a reasonable period of notice with a reasonable direction from the Gatekeeper Competent Authority or its delegate relating to the Listing Requirements; store and maintain data within Australia; and provide the Services from within Australia;
(d) (e) 7.2
The Gatekeeper Competent Authority may revoke the Listed Organisation‟s Gatekeeper Listing if: (a) (b) the Listed Organisation breaches the requirements of clause 7.1; the Gatekeeper Competent Authority has given the Listed Organisation written notice specifying that breach; and
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(c)
the Listed Organisation fails to remedy that breach to the reasonable satisfaction of the Gatekeeper Competent Authority within 20 Business Days of receipt of that notice, or such longer period as may be specified in the notice.
7.3
If this Agreement is terminated (see clauses 17, 18 and 19), the Listed Organisation will cease to hold Gatekeeper Listing from the date of expiry or termination of this Agreement.
8. Gatekeeper Evaluators
8.1 The Listed Organisation must, in response to a request by Finance arising in relation to either clause 10 or clause 11: (a) allow Authorised Evaluators reasonable access on reasonable notice during normal working hours to the Listed Organisation‟s personnel, premises, equipment, systems and documentation for the purpose of evaluating the Listed Organisation‟s operation against the Listing Requirements; co-operate fully with the Authorised Evaluators and respond promptly to, and comply with, any reasonable request from them; and where required by an Authorised Evaluator, pay all fees and costs incurred as a direct result of them carrying out their role as an Authorised Evaluator.
(b) (c) 8.2
The cost of all actions required to be taken by the Listed Organisation to address any issues identified by an Authorised Evaluator, or Finance, is to be borne by the Listed Organisation.
9. Gatekeeper Audits
9.1 Finance requires an annual compliance audit to be conducted by a suitably qualified independent auditor (for example, a member of the Gatekeeper Audit Panel) of the Listed Organisation‟s operational security and privacy criteria. Finance may also require an audit by an Authorised Auditor if Finance has issued a notice under clause 7.2(b) or clause 17.1(a) - to investigate whether or not a breach has been remedied. The Listed Organisation must: (a) allow an Authorised Auditor reasonable access on reasonable notice during normal working hours to the Listed Organisation‟s personnel, premises, equipment, systems and documentation for the purposes of auditing the Listed Organisation‟s compliance with the Listing Requirements and Documents; co-operate fully with an Authorised Auditor and respond promptly to, and comply with, any reasonable request from them; and where required by an Authorised Auditor, pay all costs incurred by the Authorised Auditor as a direct result of them carrying out their role as an Authorised Auditor.
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9.2
9.3
(b) (c)
9.4
Where Finance specifies in a written non-compliance notice, which satisfies the notice requirements of clause 35, to the Listed Organisation that the audit findings reveal: (a) major non-compliance, failure or significant compromise of the Listed Organisation's operations in particular with respect to any aspect of the security of the Listed Organisation‟s operations (in this Agreement called, and the written notice to be described as, a “Major Non-Compliance Notice”) - the Listed Organisation must take immediate action to remedy the items specified in the Major Non-Compliance Notice; or minor non-compliances or weaknesses (in this Agreement called, and the written notice to be described as, a “Minor Non-Compliance Notice”) - the Listed Organisation must take action to remedy the items specified in the Minor NonCompliance Notice as soon as possible.
(b)
9.5
The Listed Organisation must advise Finance within 10 Business Days (or such other period as may be specified in a non-compliance notice sent under clause 9.4) of the actions taken pursuant to the non-compliance notice, and the expected timeframe for completion of corrective action. If the Listed Organisation does not remedy items described in a Major NonCompliance Notice in a timeframe that the Gatekeeper Competent Authority considers is reasonable in all the circumstances, and the Gatekeeper Competent Authority takes the view that compliance with the Listing Requirements and Documents requires the Listed Organisation to take action or further action: (a) the Gatekeeper Competent Authority may direct the Listed Organisation to take those actions by a particular date, and provide reasons why it requires those actions to be taken; and the Listed Organisation must take those actions by that date unless otherwise agreed with the Gatekeeper Competent Authority.
9.6
(b) 9.7
The cost of any actions required under this clause 9 to be taken by the Listed Organisation is to be borne by the Listed Organisation.
10. Amendment of Listing Requirements
10.1 Finance may amend the Listing Requirements at any time in accordance with this clause 10. 10.2 All amendments to the Listing Requirements must be raised with and agreed by the Gatekeeper Policy Committee in accordance with its Terms of Reference and endorsed in writing by the Gatekeeper Competent Authority. 10.3 Finance must give written notice to the Listed Organisation describing any amendments to the Listing Requirements relevant to the Listed Organisation that have been endorsed in writing by the Gatekeeper Competent Authority, and the timeframe and manner (each of which must be agreed with the Listed Organisation) within which the Listed Organisation must comply with those amendments.
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10.4 The Listed Organisation must comply with the amended Listing Requirements within the timeframe and the manner specified in the notice referred to in clause 10.3. 10.5 If the Listed Organisation does not comply with the clause 10.3 notice in a timeframe that the Gatekeeper Competent Authority considers is reasonable in all the circumstances, and the Gatekeeper Competent Authority takes the view that compliance with the terms of the notice requires the Listed Organisation to take action or further action: (a) the Gatekeeper Competent Authority may direct the Listed Organisation to take those actions and provide reasons why it requires those actions to be taken; and (b) the Listed Organisation must take those actions. 10.6 The cost of any actions required under this clause 10 to be taken by the Listed Organisation is to be borne by the Listed Organisation. 10.7 An amendment to the Listing Requirements need not affect any Contract entered into by the Listed Organisation before the date specified by the Gatekeeper Competent Authority in accordance with clause 10.3 notice.
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11. Changes to Documents
11.1 No changes are to be made to the Documents without the prior approval in writing of the Gatekeeper Competent Authority. 11.2 Changes to the Documents must be conducted in accordance with the change process described in the relevant Document, and if there is no change process in the relevant document, in accordance with a process approved in writing by the Gatekeeper Competent Authority. 11.3 All changes made to the Documents are subject to audit in accordance with clause 9.
12. Change of Circumstances
If the Listed Organisation‟s circumstances change and the Listed Organisation considers that this may impact on its ability to maintain its Listing, or if the Listed Organisation wishes to change some aspect of the manner of its operations as described in the Documents, the Parties must consult with each other in good faith with a view to deciding what action to take in relation to, among other things, the Listed Organisation‟s Gatekeeper Listing, this Agreement and the Documents.
13. Management of Aggregate Commonwealth Risk
13.1 The Gatekeeper Competent Authority may: (a) (b) after consultation with the Listed Organisation and Customers; taking into account, amongst other things, the available technology, security issues and concerns, and business issues raised by the Listed Organisation and Agencies; and for the purposes of effectively managing Aggregate Commonwealth Risk;
(c)
issue a direction in writing to the Listed Organisation requiring the Listed Organisation to take the action specified in the direction within the period or periods specified in the direction. 13.2 While the Gatekeeper Competent Authority has discretion to direct the Listed Organisation to take whatever action is required for the purpose described in clause 13.1(c), the Gatekeeper Competent Authority must: (a) (b) (c) act reasonably in all the circumstances; only require the Listed Organisation to take those actions which are necessary to achieve the purposes outlined in clause 13.1(c); and notify the Listed Organisation in writing of the reasons for issuing the direction.
13.3 In this clause 13, the term Aggregate Commonwealth Risk includes, but is not limited to, security, business or technology risks that in the Gatekeeper Competent
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Authority‟s reasonable opinion have the potential to adversely impact the operations of Commonwealth Agencies.
14. Consequences of Listing
14.1 Obtaining Gatekeeper Listing entitles the Listed Organisation to: (a) (b) represent to third parties that it has been Gatekeeper Listed; and provide Services to, or in relation to, a Customer.
14.2 The Listed Organisation must not represent to any party that its Gatekeeper Listing implies any guarantee of any kind by the Commonwealth, Finance, the Gatekeeper Competent Authority, the Authorised Evaluators or the Authorised Auditors in relation to the provision of Services by the Listed Organisation. 14.3 If the Listed Organisation offers services to a customer other than to, or for the purposes of, a Customer, the Listed Organisation must not state, warrant or represent to that other customer that the Listed Organisation‟s Gatekeeper Listing will ensure that those Services will be fit for that non-Commonwealth purpose. 14.4 The Listed Organisation agrees to indemnify the Commonwealth against any substantiated loss, damage or liability that the Commonwealth suffers or incurs as a result of a breach by the Listed Organisation of this clause 14.
15. Warranties
15.1 The Listed Organisation warrants that: (a) reliance by the Commonwealth (including its contractors) on Certificates produced as a result of Services provided by the Listed Organisation will not infringe the Intellectual Property Rights of any person; and the Listed Organisation will perform its obligations under this Agreement in a manner that does not infringe any Intellectual Property Rights of the Commonwealth or any third party.
(b)
15.2 The Listed Organisation warrants that: (a) the Listed Organisation‟s execution and delivery of the Agreement, and the performance of its obligations under this Agreement, will not constitute: (i) (ii) (iii) (b) a violation of any judgement, order or decree; a default under any contract by which it or any of its assets are bound; or an event that would, with notice or lapse of time, or both, constitute such a default;
the Listed Organisation is duly constituted as a corporation under the Corporations Law;
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(c)
the constituting documents of the Listed Organisation empowers the Listed Organisation to enter into this Agreement and to do all things that it can reasonably contemplate will be required by this Agreement; all necessary corporate approvals have been obtained by the Listed Organisation to render this Agreement binding on, and legally enforceable against, the Listed Organisation in accordance with its terms; it will immediately notify Finance of the occurrence of, or the pending or threatened occurrence of, any event of which it is aware that may cause or constitute a breach of any of the representations, warranties or covenants contained or made in connection with this Agreement, including without limitation, any event that may result in a material adverse change in the business of the Listed Organisation or may affect the financial viability of the Listed Organisation‟s business; it has disclosed to Finance prior to the Commencement Date details of any litigation or proceeding whatsoever, actual or threatened, against the Listed Organisation that may have an adverse effect on the ability of the Listed Organisation to provide the Services to a Commonwealth Agency and these disclosures are true and correct as at the Commencement Date; and throughout the term of this Agreement, any additional issues of the kind and described in clause 15.2(f) that arise from time to time subsequent to the Commencement Date will be disclosed by the Listed Organisation to Finance when they occur.
(d)
(e)
(f)
(g)
16. Indemnity
16.1 The Listed Organisation releases and indemnifies the Commonwealth, including its employees, agents and sub-contractors („those indemnified‟) against any loss (including reasonable legal costs and expenses) or liability that has been incurred by them and which has arisen from a claim, action or proceeding by a third party against those indemnified where that loss or liability was caused by, or arose out of: (a) (b) a wilful, unlawful or negligent act or omission, in connection with this Agreement by the Listed Organisation, its employees, agents or sub-contractors; or use by any of those indemnified of a Certificate produced as a result of Services provided by the Listed Organisation, which use the third party claims is an infringement of the Intellectual Property Rights of the third party.
16.2 The Commonwealth shall notify the Listed Organisation in writing as soon as practicable of any claim, action or proceeding referred to in clause 16.1 that is threatened or brought against any of those indemnified. 16.3 The Listed Organisation acknowledges that the Commonwealth is bound to conduct any claim, action or proceeding in accordance with current Commonwealth policy and in particular, the Legal Services Directions issued by the Commonwealth AttorneyGeneral pursuant to section 55ZF of the Judiciary Act 1903 (Cth).
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16.4 Each indemnity in this Agreement is a continuing indemnity, separate and independent from the other obligations of the Parties, and survives termination and repudiation of this Agreement.
17. Termination by Finance
17.1 Each of the following is an Event of Default: (a) the Listed Organisation commits a material breach of this Agreement which is capable of being remedied but the breach continues for 15 Business Days after the Listed Organisation is given a notice by the Gatekeeper Competent Authority requiring the breach to be remedied; the Listed Organisation commits a breach which cannot be remedied, which breach is, in the reasonable opinion of the Gatekeeper Competent Authority, a serious breach of this Agreement; the Listed Organisation ceases to hold any licence, approval, authorisation endorsement or consent required to enable it to comply with its obligations under this Agreement; the Listed Organisation‟s Gatekeeper Listing is revoked; where there occurs either a single incident, or a series of incidents, that in the reasonable opinion of the Gatekeeper Competent Authority, constitutes a material compromise of the Listed Organisation‟s security in relation to the provision of the Services; any action is taken to make the Listed Organisation an externally administered body corporate as defined by the Corporations Law, or an insolvent under administration; or the Listed Organisation ceases to be controlled by its existing parent company and that change of control, in the reasonable opinion of the Gatekeeper Competent Authority, has a materially adverse effect on the provision of Services to a Commonwealth Agency.
(b)
(c)
(d) (e)
(f)
(g)
17.2 A failure by the Listed Organisation to comply with a direction issued by the Gatekeeper Competent Authority under this Agreement in accordance with the terms of that direction shall be deemed to be a breach of the kind referred to in clause 17.1(b). 17.3 Without prejudice to any other right or remedy that Finance has, if any Event of Default occurs, the Commonwealth may terminate this Agreement by giving 20 Business Days notice to the Listed Organisation.
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18. Termination by Listed Organisation
18.1 Without prejudice to any other right or remedy which the Listed Organisation has, the Listed Organisation may terminate this Agreement by giving: (a) (i) twenty Business Days notice to Finance if Finance commits a breach: of this Agreement which is capable of being remedied but the breach continues for 20 Business Days after Finance is given a notice by the Listed Organisation requiring the breach to be remedied; or which cannot be remedied, which breach is, in the Listed Organisation‟s reasonable view, a serious breach of this Agreement; or notice to Finance before the time for compliance with a direction issued by the Gatekeeper Competent Authority has arrived – where the Listed Organisation does not wish to comply with that direction.
(ii) (b)
19. Termination for Convenience
19.1 The Gatekeeper Competent Authority may terminate this Agreement at any time by written notice to the Listed Organisation. 19.2 The Listed Organisation must immediately comply with any directions given in the notice in relation to subsequent performance of its obligations under this Agreement, any Contracts, or the conduct of any activities under the Documents, and do all that is possible to mitigate its losses arising from the termination of this Agreement. 19.3 The Commonwealth will reimburse the Listed Organisation against any costs or expenses which are reasonably and properly incurred by the Listed Organisation as a direct consequence of termination under this clause 19, but the Commonwealth will not be liable to reimburse the Listed Organisation for any loss of profits. 19.4 The Listed Organisation must, in each of its sub-contracts where the fees or other consideration to be paid exceeds $20,000, reserve a right of termination in similar terms to this clause 19.
20. Consequences of Termination / Expiry
20.1 If the Listed Organisation: (a) (b) then: (c) from the date it issues or receives the notice – where it has issued or received a Termination Notice; receives a Termination Notice under clause 17 or 19; or issues a Termination Notice under clause 18;
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the Listed Organisation must: (d) (e) not enter into any new Contracts with Customers, or renew any existing Contracts; give notice to all Gatekeeper accredited Certification Authorities terminating its Contracts with them, the termination to be, subject to clause 20.4, effective in accordance with the terms of the relevant Contract; and subject to the requirements of this clause 20, continue to provide the Services in accordance with the contractual arrangements, and any relevant Documents which include arrangements to accommodate significant interruptions in the provision of the Services.
(f)
20.2 The Gatekeeper Competent Authority may give reasonable written directions to the Listed Organisation on the requirements of clause 20.1 and the Listed Organisation must comply with any such directions given within a timeframe to be reasonably agreed between the Parties. 20.3 The Gatekeeper Competent Authority may, after receiving a written request from the Listed Organisation, by notice to the Listed Organisation, agree to vary any of the times or time periods specified in clause 20.1. 20.4 The Listed Organisation must, in each Contract, reserve a right to terminate, which termination is to be effective on the date this Agreement terminates or expires. 20.5 Subject to this clause 20, if this Agreement expires, or is terminated, the accrued rights of the Parties remain unaffected.
21. Limitation of Liability
21.1 The aggregate liability of either Party for all Causes of Action is limited to $50,000 per Year during the term of this Agreement. 21.2 The limitation in clause 21.1 does not apply in relation to liability for: (a) (b) (c) (d) (e) personal injury, including sickness and death; fraud; breach of Confidentiality, privacy, infringement of Intellectual Property Rights; loss of, or damage to, tangible property; or an indemnity provided under this Agreement.
21.3 In no event shall a Party that incurs liability for a Cause of Action be liable for any indirect or consequential loss or damage or loss of revenue, profits, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings incurred or suffered by the other Party whether caused by negligence or otherwise or whether or not the first Party was or should have been aware of the possibility of such loss or damage. 21.4 In this clause, Cause of Action means a breach of this Agreement or any other common law, equitable or statutory cause of action arising out of the operation of this Agreement.
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21.5 This clause 21 survives the expiry or termination of this Agreement.
22. Confidential Information
22.1 Subject to clause 22.3, a Party must not, without the prior written consent of the other Party, disclose any Confidential Information (see clause 22.8) of the other Party to a third party. 22.2 In giving written consent to the disclosure of Finance‟s Confidential Information, Finance may impose such conditions as it thinks fit, and the Listed Organisation agrees to comply with these conditions. 22.3 The obligations on the Parties under this clause 22 will not be taken to have been breached to the extent that Confidential Information: (a) (b) (c) (d) (e) (f) (g) is disclosed by a Party to its Advisers or employees solely in order to comply with obligations, or to exercise rights, under this Agreement; is disclosed to a Party‟s internal management personnel, solely to enable effective management or auditing of Agreement-related activities; is disclosed by Finance to its responsible Minister; is disclosed by Finance, in response to a request by a House or a Committee of 1 the Parliament of the Commonwealth of Australia ; is shared within Finance, or with another Commonwealth Agency, where this serves the Commonwealth‟s legitimate interests; is authorised or required by law to be disclosed; is disclosed by Finance and is information in a material form in respect of which an interest, whether by licence or otherwise, in the Intellectual Property Rights in relation to that material form, has vested in, or is assigned to, Finance under this Agreement or otherwise, and that disclosure is permitted by that licence or otherwise; or is in the public domain otherwise than due to a breach of this clause 22.
(h)
22.4 Where a Party discloses Confidential Information to another person: (a) (i) (ii) pursuant to clauses 22.3 (a), (b) or (e), the disclosing Party must: notify the receiving person that the information is Confidential Information; and not provide the information unless the receiving person agrees to keep the information confidential; or
1
This would include a request to publish information on the Internet, for example, pursuant to the Senate Order on Government Agency Contracts dated 27 September 2001. 14 Deed of Agreement Template January 2008
(b)
pursuant to clauses 22.3 (c) and (d), the disclosing party must notify the receiving party that the information is Confidential Information.
22.5 The Parties may agree in writing after the Commencement Date that certain additional information is to constitute Confidential Information for the purposes of this Agreement, and where the Parties so agree, that documentation is incorporated into, and becomes part of this Agreement, on the date by which both Parties have signed that documentation. 22.6 The obligations under this clause 22 continue, notwithstanding the expiry or termination of this Agreement: (a) (b) in relation to an item of information described at Item 4 of Schedule 1 – for the period set out in that schedule in respect of that item; and in relation to any information which the Parties agree in writing after the Commencement Date is to constitute Confidential Information for the purposes of this Agreement – for the period agreed by the Parties in writing in respect of that information.
22.7 Nothing in this clause 22 affects any obligation which the Listed Organisation may have either under the Privacy Act 1988 as amended from time to time, or under this Agreement, in relation to the protection of Personal Information. 22.8 Subject to the operation of the law relating to confidential information, for the purposes of this Agreement, the information specified at Item 4 of Schedule 1, and information specified in any agreement referred to in clause 22.5, is the Confidential Information of the respective Parties.
23. Privacy
23.1 The Listed Organisation: (a) (b) agrees to abide by the Information Privacy Principles as if it were a Commonwealth Agency when it is delivering Services to a Customer; and will, in the course of providing the Services, comply with the obligations set out in this clause 23 in accordance with its obligation described in clause 23.1(a).
23.2 The Listed Organisation shall take all reasonable measures to ensure that Personal Information held by it is protected against loss, and against unauthorised access, use, modification, disclosure or other misuse in accordance with the procedures set out in the Documents and that only authorised personnel have access to the Personal Information. 23.3 The Listed Organisation shall not disclose, other than to a sub-contractor for the purposes of providing the Services, any Personal Information obtained in connection with issuance of a Certificate without the prior written approval of the Subscriber, and the Listed Organisation shall immediately notify the Subscriber where it becomes aware that a disclosure of Personal Information may be required by law. 23.4 The Listed Organisation shall not transfer Personal Information held in connection with issuance of a Certificate outside Australia, or allow parties outside Australia to
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have access to it, without the prior written approval of the Subscriber. 23.5 The Listed Organisation agrees in respect of any Services that it is Gatekeeper Listed to provide to Commonwealth Agencies: (a) to notify individuals whose personal information the Listed Organisation holds, that complaints about acts or practices of the Listed Organisation may be investigated by the Privacy Commissioner who has power to award compensation against the Listed Organisation in appropriate circumstances; not to use or disclose Personal Information or engage in an act or practice that would breach section 16F of the Privacy Act 1988 (Cth) (direct marketing), an NPP (particularly NPPs 7 to10) or an Approved Privacy Code (APC), where that section, NPP or APC is applicable to the Listed Organisation, unless: (i) in the case of section 16F - the use or disclosure is necessary, directly or indirectly, to discharge an obligation under this Agreement or Subscriber Agreement; or in the case of an NPP or an APC - where the activity or practice is engaged in for the purpose of discharging, directly or indirectly, an obligation under this Agreement or a Subscriber Agreement, and the activity or practice which is 2 authorised by the relevant contract is inconsistent with the NPP or APC ; to disclose in writing to any person who asks, the content of the provisions of this Agreement or Subscriber Agreement (if any) that are inconsistent with an NPP or an APC binding a party to the relevant contract3.
(b)
(ii)
(c)
23.6 The Listed Organisation shall ensure that any of its employees requiring access to any Personal Information held in connection with issuance of a Certificate must, before they get access to that Personal Information: (a) (b) give a written undertaking not to access, use, disclose or retain Personal Information except in performing their duties of employment; and be informed that failure to comply with the written undertaking may be a criminal offence and may also lead the Listed Organisation to take disciplinary action against the employee.
23.7 The Listed Organisation agrees to ensure that any subcontract entered into for the purpose of providing Services to a Commonwealth Agency contains provisions to ensure that the subcontractor has the same awareness and obligations as the Listed Organisation has under this clause, including the requirement in relation to subcontracts. 23.8 Clauses 23.6 and 23.7 shall not be read so as to prevent an employee or subcontractor from using, for their own purposes, any information that it acquires independently of its employment or work for the Listed Organisation. 23.9 The Listed Organisation acknowledges that:
2
3
Note that section 6A of the Privacy Act 1988 requires that the Listed Organisation be „obliged‟ to carry out the activity. Section 95C of the Privacy Act 1988. 16 Deed of Agreement Template January 2008
(a)
any unauthorised and intentional access, destruction, alteration, addition or impediment to access or usefulness of Personal Information stored in any Commonwealth computer, or in a computer containing information on behalf of the Commonwealth, in the course of performing its obligations under this Agreement or a Subscriber Agreement may be an offence under Part VIA of the Crimes Act 1914 (Cth) for which there are a range of penalties, including a maximum of ten years imprisonment; and
(b) the publication or communication of any fact or document by a person which has come to their knowledge or into their possession or custody by virtue of the performance of any of their obligations under this Agreement or a Subscriber Agreement (other than to a person to whom the Listed Organisation is authorised to publish or disclose the fact or document) may be an offence under section 70 of the Crimes Act 1914 (Cth), the maximum penalty for which is two years imprisonment. 23.10 The Listed Organisation shall, in respect of any Personal Information held in connection with the issuance of a Certificate, co-operate with any reasonable requests or directions of Finance arising directly from, or in connection with the exercise of the functions of the Privacy Commissioner under the Privacy Act 1988 (Cth) or otherwise, including, but not limited to, the issuing of any guideline concerning the handling of Personal Information. 23.11 The Listed Organisation agrees to indemnify the Commonwealth in respect of any loss, liability or expense suffered or incurred by the Commonwealth which arises directly or indirectly from a breach of any of the obligations of the Listed Organisation under this clause 23, or a subcontractor under the subcontract provisions referred to in subclause 23.7. 23.12 This clause 23 shall continue to have effect after the termination or completion of this Agreement. 23.13 In this clause 23, the terms „approved privacy code‟ (APC) and „National Privacy Principles‟ (NPPs) have the same meaning as they have in section 6 of the Privacy Act 1988 (Cth), and the term „Commonwealth Agency‟ has the same meaning as the term „agency‟ has in that Act.
24. Publicity
The Listed Organisation must not make, or authorise the making of, any public statement relating in any way to Gatekeeper Listing that is misleading or deceptive in any manner.
25. Intellectual Property
25.1 The Commonwealth acknowledges that the Listed Organisation retains all Intellectual Property Rights in the Documents. 25.2 Subject to clause 22, and except as otherwise agreed by the Parties, the Listed Organisation grants the Commonwealth a non-exclusive, non-transferable, royaltyfree, world-wide licence during the term of this Agreement to exercise the Listed Organisation‟s Intellectual Property Rights in the Documents so as to enable the Commonwealth to use, reproduce and distribute the Documents for the sole purposes
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of evaluating the Listed Organisation‟s operation, granting Listing and auditing the Listed Organisation‟s ongoing compliance with the Listing Requirements and Documents.
26. Dispute Resolution
26.1 If a dispute arises between the Parties in relation to this Agreement (Dispute), either Party may by written notice to the other Party specify the details of the Dispute (Dispute Notice). 26.2 If a Dispute Notice is given then the Parties must promptly meet and negotiate in good faith to resolve the Dispute. 26.3 If the Dispute remains unresolved 20 Business Days after receipt of the Dispute Notice, the Parties agree to submit the Dispute to mediation administered by and in accordance with the mediation rules of the Australian Commercial Disputes Centre (ACDC). 26.4 A single mediator will be agreed by the Parties or, failing agreement, appointed by the ACDC. The mediation will be held in Canberra and be subject to the laws in force in the Australian Capital Territory. A Party may be represented by legal counsel in any mediation. 26.5 Nothing in this clause 26 prevents a Party from seeking urgent relief before an appropriate Court.
27. Variation of Agreement
This Agreement shall only be varied by way of a deed of variation signed by the Parties.
28. Assignment and Novation
The Listed Organisation may not assign or novate the whole or part of this Agreement.
29. Waiver
The failure of either Party to enforce this Agreement shall in no way be interpreted as a waiver of its rights under this Agreement.
30. Entire Agreement
This 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.
31. Archives Act 1983
31.1 The Parties will ensure that the custody or ownership of Commonwealth records as that term is defined in the Archives Act 1983 (Cth) is not transferred without the prior written approval of the National Archives of Australia.
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31.1 The Listed Organisation agrees to comply with any direction given by Finance for the purpose of transferring Commonwealth records to the National Archives of Australia or providing the National Archives of Australia with full and free access to those records.
32. Subcontracting
32.1 The Listed Organisation must not, without the prior written approval of the Gatekeeper Competent Authority, subcontract the provision of any significant element of Services under a Contract without the written approval of the Gatekeeper Competent Authority. 32.2 If the Gatekeeper Competent Authority consents to the work being performed by a sub-contractor, the Listed Organisation: a) is in no way relieved from performing its obligations under this Agreement; b) must ensure that the sub-contractor has been Gatekeeper Listed to the extent that the sub-contractor‟s activities fall within the activities that would normally require such Listing prior to it commencing the sub-contracting activities; c) must ensure that the sub-contractor is aware of the provisions of this Agreement relevant to the part of the work to be performed by the sub-contractor; and d) must include in any sub-contract where the fees or other consideration to be paid valued at $20,000 or more a right of termination of the kind described in clause 19. 32.3 The Listed Organisation agrees that the Competent Authority may request withdrawal and replacement of any sub-contractor, and if Finance wishes to do this, it must notify the Listed Organisation in writing setting out reasons for making such a request for withdrawal or replacement. 32.4 A failure by the Listed Organisation to comply with a request issued by the Gatekeeper Competent Authority to withdraw and replace a sub-contractor under this Agreement shall give rise to a Dispute Notice being provided to the Listed Organisation and the Dispute will be resolved in accordance with clause 26.
33. Applicable Law
33.1 This Agreement is governed by, and is to be construed in accordance with, the laws from time to time in force in the Australian Capital Territory. 33.2 The Parties agree to submit to the jurisdiction of the courts having jurisdiction in the Australian Capital Territory.
34. Conflict of Interest
34.1 Each Party undertakes to the other that, to the best of its knowledge, at the Commencement Date, no conflict of interest exists or is likely to arise in the performance of its obligations under this Agreement. 34.2 Each Party will promptly notify the other in writing if a likely conflict of interest arises during the term of this Agreement.
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34.3 Should a conflict of interest arise which significantly affects the interests of the other Party, that conflict may be treated by the other Party as a breach of this Agreement of the kind described in clause 17.1(b) or clause 18(a)(ii).
35. Notices
35.1 Any notice, advice, agreement, undertaking or any other communication given by one Party to the other for the purposes of this Agreement must be in writing. 35.2 The address for service of notice of each Party is as set out at Item 5 of Schedule 1 unless otherwise advised in writing by the relevant Party. 35.3 A notice under this Agreement is deemed to have been given: (a) (b) (c) (d) (e) if it is delivered by hand - on the date upon which it is delivered and a receipt obtained; if it is sent by registered post - on the day upon which it is delivered and a receipt obtained; if transmitted by facsimile transmission - when the sender receives confirmation of a successful transmission; if transmitted by email - when the sender receives confirmation that the email has been opened; and if the Parties have previously agreed that notices can be digitally signed and delivered electronically – when the sender receives confirmation of successful receipt.
35.4 If delivery or receipt of a notice occurs on a day on which business is not normally conducted in the place of receipt, or it is received later than 4 PM local time it will be deemed to be given on the next day on which business is normally conducted in that place.
36. Survival of Clauses
If this Agreement is terminated for any reason, or expires, those clauses that are necessary for the Parties to effectively exercise their rights, and discharge their obligations and responsibilities to each other, and in particular to ensure that the operations of Commonwealth Agencies are not unduly disrupted, will survive the termination or expiration of this Agreement.
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Execution Executed as an agreement Date: day of 2007
Signed by the Commonwealth of Australia, acting through and represented by the Department of Finance and Deregulation in the presence of:
................................ Signature of witness ................................ Name of witness (print)
................................ Signature of authorised person ................................ Name of authorised person (print)
Executed by [insert company name] in accordance with section 127 of the Corporations Act 2001 in the presence of:
Signature of witness
Signature of director/company secretary (Please delete as applicable)
Name of witness (print)
Name of director/company secretary (print)
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Schedule 1 – Agreement Details
1. Address of Department of Finance and Deregulation (Parties)
John Gorton Building King Edward Terrace PARKES ACT 2600
2.
Address of Listed Organisation (Parties)
[insert address]
3.
Type of Listing Approved to Listed Organisation (clause 5)
[Specify here the type of Gatekeeper Listing]
4.
Confidential Information of the Parties (clause 22)
4.1 Finance Confidential Information [Describe any information that Finance considers is confidential and the period during which it is to be protected by the Listed Organisation] 4.2 Listed Organisation Confidential Information [Describe any information that the Listed Organisation considers is confidential and the period during which it is to be protected by Finance]
5.
Addresses for Notices (clause 35)
General Manager Australian Government Information Management Office Department of Finance and Deregulation John Gorton Building King Edward Terrace PARKES ACT 2600 Attention: Director, Gatekeeper Facsimile Number: (02) 6215 1544 Email: gatekeeper@finance.gov.au
5.1 Commonwealth of Australia
5.2 Listed Organisation Address of the Listed Organisation: [Insert details] Facsimile Number: [Insert number]
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Schedule 2 - Documents and Listing Requirements
[Set out in this schedule a list of the Listing Requirements the Listed Organisation was evaluated against, and the latest version of the Listed Organisation‟s Documents]
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