DATED DAY OF 2012 SOFTWARE LICENSING, CONFIGURATION, MAINTENANCE AND SUPPORT AGREEMENT BETWEEN THE HONOURABLE JOHN RAU

Transcription

1 DATED DAY OF 2012 SOFTWARE LICENSING, CONFIGURATION, MAINTENANCE AND SUPPORT AGREEMENT BETWEEN THE HONOURABLE JOHN RAU ATTORNEY-GENERAL OF SOUTH AUSTRALIA ( Customer ) AND LABWARE AUSTRALIA PTY LTD (ACN ) ( Supplier ) CROWN SOLICITOR Level 9, 45 Pirie Street, Adelaide SA 5000

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3 Page i of ii TABLE OF CONTENTS 1. GENERAL SCOPE OF THIS AGREEMENT TERM MONTHLY EXTENSION OF THE TERM SUPPLIER ACKNOWLEDGEMENTS REPRESENTATIVES PERFORMANCE GUARANTEE PROJECT MANAGEMENT IMPLEMENTATION SUPPLIER S OBLIGATIONS CUSTOMER S OBLIGATIONS FINANCIAL ARRANGEMENTS LICENCE DOCUMENTATION PROTECTION OF SOFTWARE AND SUPPLIER S RIGHTS CONFIGURED SOFTWARE COMMISSIONING SERVICES TESTING AND ACCEPTANCE WARRANTIES AND INDEMNITIES WARRANTY PERIOD MAINTENANCE AND SUPPORT PERIOD MAINTENANCE AND SUPPORT SERVICES UPDATES AND NEW RELEASES ADDITIONAL SERVICES INFORMATION SYSTEMS SECURITY POLICIES, STANDARDS AND OTHER REQUIREMENTS INTELLECTUAL PROPERTY RIGHTS INTELLECTUAL PROPERTY RIGHTS INDEMNITY INSURANCE CONFIDENTIAL INFORMATION AGREEMENT DISCLOSURE REPORTS KEY PERFORMANCE INDICATORS...30 M FS doc BABAR / 19/12/2012

4 Page ii of ii 35. SUPPLIER STAFF AUDIT RESOLUTION OF DISPUTES FORCE MAJEURE TERMINATION REDUCTION IN SCOPE OF SERVICES DISENGAGEMENT AND HANDOVER REMEDIES AFFIRMATIVE ACTION...38 SCHEDULE 1 SCHEDULE 2 LICENSED SOFTWARE SCHEDULE 3 THE CONFIGURATION SERVICES AND CONFIGURED SOFTWARE SCHEDULE 4 TESTING AND ACCEPTANCE SCHEDULE 5 COMMISSIONING OF SYSTEM SCHEDULE 6 MAINTENANCE AND SUPPORT SERVICES SCHEDULE 7 THE SERVICE LEVEL AGREEMENT OR ( SLA ) AND KEY PERFORMANCE INDICATORS SCHEDULE 8 FINANCIAL ARRANGEMENTS SCHEDULE 9 THE CUSTOMER S SPECIFICATIONS SCHEDULE 10 POLICIES, STANDARDS AND SECURITY REQUIREMENTS SCHEDULE 11 REPORTING REQUIREMENTS SCHEDULE 12 IMPLEMENTATION SERVICES ATTACHMENT 1 DEED POLL - PERSONAL DECLARATION AND CONSENT ATTACHMENT 2 ACCEPTANCE CERTIFICATE ATTACHMENT 3 INFORMATION SECURITY MANAGEMENT FRAMEWORK ATTACHMENT 4 THE STATE S CONDITIONS OF CONNECTION ATTACHMENT 5 THE GAP ANALYSIS STUDY ATTACHMENT 6 THE INITIAL PROJECT SCHEDULE ATTACHMENT 7 PERFORMANCE GUARANTEE ATTACHMENT 8 CERTIFICATE OF CURRENCY M FS doc BABAR / 19/12/2012

5 Page 1 of 39 THIS AGREEMENT is made the day of 2012 BETWEEN: THE HONOURABLE JOHN RAU, Attorney-General of South Australia for and on behalf of the Crown in right of the State of South Australia of 45 Pirie Street, Adelaide, South Australia 5000 ( Customer ) AND LABWARE AUSTRALIA PTY LTD (ACN ) of 1013 Whitehorse Road, Box Hill, Victoria 3128 ( Supplier ) RECITALS: A. The Attorney-General, through Forensic Science SA, issued a Request for Proposal on 30 May 2011 for a forensic laboratory information management system ( RFP ). B. The Supplier submitted a response to the RFP and was subsequently engaged by the Attorney-General to provide a gap analysis study in May 2012 which the Supplier completed in August C. The Attorney-General now wishes to engage the Supplier and the Supplier agrees to provide the Services in accordance with this Agreement. AGREED TERMS: 1. GENERAL Definitions 1.1 In this Agreement unless a contrary intention is evident: Acceptance Certificate means a certificate in the form of Attachment 2; Acceptance Tests means the tests specified in Schedule 4, and/or otherwise conducted under clause 18; Additional Concurrent User Licenses means those licenses as described in Schedule 8; Additional Services means any Services required by the Customer in connection with the Software and/or the System, other than Services already described in this Agreement; Additional Software Concurrent User Fee means the fee/s as described in Schedule 8; Agreed Rates means the rates specified in Schedule 8; M FS doc BABAR / 19/12/2012

6 Page 2 of Agreement means this Agreement between the parties including (where the context requires) an Individual Supply Contract; Business Day means any day from Monday to Friday except for public holidays in South Australia or Victoria; Commencement Date means the date specified in Schedule 1; Confidential Information means any paper or electronic information in either original or duplicate form, disclosed by, or on behalf of, a party to this Agreement that: (a) (b) (c) (d) is by its nature confidential or by the circumstances in which it is disclosed is confidential; is designated by the disclosing party as confidential or identified in terms connoting its confidentiality; the party to whom Confidential Information is disclosed knows or ought to know is confidential; or is confidential by virtue of the circumstances in which a third party may have submitted that information to the disclosing party; but does not include information which is or becomes public knowledge other than by a breach of this Agreement or information which is included in this Agreement; Customer Data means any data owned or supplied by the Customer to which the Supplier is provided access pursuant to this Agreement or data otherwise generated, compiled, arranged or developed on the System by either party pursuant to this Agreement; Customer Material means any material prepared by or on behalf of the Supplier for the Customer in connection with the Services (including but not limited to the Technical Specifications, reports, data, computer programs, computer disks and any material containing the Customer s Confidential Information or Customer Data); Customer s Specification means a document comprising the Customer s requirements for the System and/or the Services specified in Schedule 9 and/or an Individual Supply Contract; Configuration Services means those services described in clause 16 and Schedule 3; Configured Software means any software configurations developed by the Supplier for the Customer under this Agreement, including that software specified in Schedule 3 and/or an Individual Supply Contract; Date Compliant means: (a) (b) (c) capable of reading and processing all dates; ensuring the successful transition from one date or year to the next date or year; and capable of accurately undertaking calculations and compiling the difference between any two year numbers; M FS doc BABAR / 19/12/2012

7 Page 3 of Defect means a defect, error or malfunction in the Software such that it does not comply with and cannot be used in accordance with its intended purpose; Deliverable means any thing required by this Agreement to be prepared by or on behalf of the Supplier for the Customer in connection with the Services (including but not limited to the Documentation, Software, and Customer Material); Designated Operating Environment means the technical environment in which the Software is to be used as specified in Schedule 5 and as varied by agreement between the parties; Documentation means the documentation required to independently use and maintain the Software; Expiry Date means the date specified in Schedule 1; Fee means the fee for the Services specified in Schedule 8 and/or an Individual Supply Contract (as relevant); FSSA means Forensic Science SA; Gap Analysis Study means the document so described and attached to this Agreement as Attachment GST means the tax imposed under the GST Act; GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth); Handover Date means the date and time when the Supplier must cease the provision of the Services; Implementation Services means those services as described in Schedule 12; Initial Project Schedule means the schedule so named and attached to this Agreement as Attachment 6; Individual Supply Contract means a contract formed under clause 24.4; Installation Date means the date so described in Schedule 1; Intellectual Property Rights means any patent, copyright, trademark, trade name, design, trade secret, know how or other form of intellectual property right whether arising before or after the execution of this Agreement and the right to registration of these rights; Key Performance Indicators means those key performance indicators as described in Schedule 7 and clause 34; LabWare means the Supplier; Licensed Software means the software specified in Schedule 2 and any Updates and New Releases for that software; Maintenance and Support Period means the period determined under clause 21; Maintenance and Support Services means the services specified in Schedule 6; M FS doc BABAR / 19/12/2012

8 Page 4 of Malicious Software means software with elements designed or intended to cause harm either by damaging or disrupting the performance of the information, communications and technology infrastructure owned or used by the South Australian Government or by transmission of information without the authority of the person to whom that information is personal or confidential; New Release means a new version of the Software that includes new features not required merely to correct Defects; Phase 1 and Phase 2 means phase 1 and phase 2, respectively, of the Services as described in Item 5 of Schedule 1; Project means the project specified in Schedule 1; Project Managers means the persons specified in Schedule 1; Representative of a party means the person named in Schedule 1; Service Level Agreement or SLA means the service level, key performance indicators and performances specified in Schedule 7; Services means the services to be provided by the Supplier under this Agreement, including (where the context requires) Transitions Services, Implementation Services and Additional Services; Software means, collectively, the Licensed Software, the Configured Software and any other Deliverable comprising software developed under this Agreement, including Software Interfaces; Software Interfaces means any interfaces between the Licensed Software and/or the Configured Software and any other applications used in connection with the System; Supplier s Staff means those persons named in Schedule 1 and any person or persons employed or engaged by the Supplier in connection with the Services including without limitation volunteers and work experience people; System means the Software operating on the Designated Operating Environment; Taxable Supply has the meaning attributed in the GST Act, and also means any component of a Taxable Supply that is treated as a separate supply under the GST Act; Tax Invoice has the meaning attributed in the GST Act; Technical Specification means all technical items, materials, products or services necessary to meet the Customer s functional requirements, including (but not limited to) network architecture diagrams, server configuration specifications, software component definitions and database models; Term has the meaning as defined in clause 3; Travel and Accommodation Budget means the amount so described in Item 5 of Schedule 8; Travel Plan means a travel plan as described in clause 12.7; Update in relation to the Software means software which has been produced primarily to overcome Defects in or to improve the operation of the Software; M FS doc BABAR / 19/12/2012

9 Page 5 of Warranty Period means the period (or periods) specified in Schedule 1 and/or an Individual Supply Contract (as relevant); and Warranty Response Time means the period, specified in Schedule 1 within which the Supplier must examine and, if necessary, correct the Software under the warranty provisions of this Agreement. 1.2 Construction In this Agreement unless a contrary intention is evident: any word importing the plural includes the singular and vice versa; any word importing a gender includes all other genders; a reference to a body corporate includes a reference to natural persons or other forms of associations and vice versa; a reference to a recital, party, clause, schedule or annexure is a reference to a recital, party, clause, schedule or annexure of this Agreement; the captions, headings, section numbers and clause numbers appearing in this Agreement are inserted only as a matter of convenience and in no way affect the construction of this Agreement; and a reference to a statute includes all statutes amending, consolidating or replacing the statute. 1.3 Documents comprising this Agreement This Agreement incorporates the schedules and attachments attached to it In resolving inconsistencies in this Agreement: (a) this Agreement (excluding any schedules and attachments attached to it); 1.4 Recitals (b) (c) any schedules; and any attachments have priority, in that order. The parties agree that the recitals are true and correct, and that they form part of this Agreement. 1.5 Auditor-General Nothing in this Agreement derogates from the powers of the Auditor-General under the Public Finance and Audit Act 1987 (SA). 1.6 Relationships Nothing in this Agreement should be construed to create any fiduciary relationship between the parties or any relationship of employer and employee, principal and agent or partnership between the Customer and the Supplier or the Supplier s staff, employees or agents In their dealings with third parties, neither the Customer nor the Supplier or any Supplier s staff, employees or agents have the authority to bind the other party in any manner whatsoever, except with the prior written approval of the other party. M FS doc BABAR / 19/12/2012

10 Page 6 of No Assignment The Supplier must not assign or encumber any of its rights or obligations under this Agreement without the Customer s prior written consent. The Customer may not unreasonably withhold consent. 1.8 Subcontracting The Supplier must not engage a sub-contractor to assist in the performance of the Services or obligations under this Agreement, without the prior written consent of the Customer Where the Customer consents to the engagement of a subcontractor, the Supplier is responsible for the performance of Services by the sub-contractor as if the Supplier had performed the Services itself. 1.9 Entire Agreement This Agreement contains the entire agreement between the parties with respect to its subject matter This Agreement supersedes any prior agreement, understanding or representation of the parties on the subject matter Survival The clauses of this Agreement relating to Customer Materials, Customer Data, Intellectual Property Rights, insurance, publicity, risk, liability (including warranties and indemnities), handover after termination and security survive the expiry or termination of this Agreement. In relation to confidentiality, the obligations continue to apply unless the Customer notifies the Supplier of its release from those obligations Proper Law The laws in force in South Australia apply to this Agreement Jurisdiction of Courts The courts of South Australia have exclusive jurisdiction to determine any proceedings in relation to this Agreement Any proceedings brought in a Federal Court must be instituted in the Adelaide Registry of that Federal Court The Supplier undertakes not to apply to transfer any proceedings to another registry of the Federal Court Compliance with Laws The Supplier must comply with the laws in force in South Australia in the course of performing this Agreement Waiver Any waiver of any provision of this Agreement is ineffective unless it is in writing and signed by the party waiving its rights A waiver by either party in respect of a breach of a provision of this Agreement by the other party is not a waiver in respect of any other breach of that or any other provision The failure of either party to enforce at any time any of the provisions of this Agreement must not be interpreted as a waiver of such provision. M FS doc BABAR / 19/12/2012

11 Page 7 of Modification Any modification of this Agreement must be in writing and signed by an authorised representative of each party Severance If any provision or part of a provision of this Agreement is invalid or unenforceable in any jurisdiction: the provision must be read down for the purposes of the operation of that provision in that jurisdiction, if possible, so as to be valid and enforceable; or if the provision cannot be read down under clause , it must be severed if it is capable of being severed without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction and the parties must consult in good faith to determine whether any amendment or substituted provision is required Stamp Duty The Customer must pay any stamp duty assessed in respect of this Agreement Notices A notice means a consent, approval or other communication required to be in writing under this Agreement A notice must be in writing and signed by or on behalf of the sender addressed to the recipient s Representative and delivered to the recipient s address as follows: (a) if sent by pre-paid mail, to the recipient s address; or (b) if transmitted by facsimile, to the recipient s facsimile number; (c) if sent by , to the recipient's address A notice given to a person in accordance with this clause is treated as having been given and received: (a) if delivered by hand, before 5.00 pm on a Business Day, on the day of delivery, otherwise on the next Business Day; (b) (c) (d) if sent by pre-paid mail, on the third Business Day after posting; if transmitted by facsimile, on the Business Day that a correct and complete transmission report is received (providing that the report states that transmission was completed before 5.00 pm), otherwise on the next Business Day; or if transmitted by , on the Business Day the sender receives a message-opened response (providing that the sender receives such response before 5.00pm), otherwise on the next Business Day, subject always to the sender receiving a message-opened response A person may from time to time notify a change of its address or facsimile number by written notice to the other party. M FS doc BABAR / 19/12/2012

12 Page 8 of SCOPE OF THIS AGREEMENT The terms and conditions of this Agreement apply to the following: 2.1 the grant of a licence to use the Software; 2.2 the configuration of the Software and any Software Interfaces required to meet the Customer s Specifications; and 2.3 installation and testing of any Deliverable comprising information technology (including but not limited to the Licensed Software, the Configured Software and Software Interfaces); 2.4 commissioning of the System, including training, data migration and other additional services required prior to the use of the System for its intended purpose; 2.5 warranties and indemnities; 2.6 Maintenance and Support Services; 2.7 Updates and New Releases; 2.8 other Additional Services required by the Customer from time to time during the Term; 2.9 financial arrangements for all of the above; and 2.10 Performance Guarantee. 3. TERM 3.1 The Term of this Agreement commences on the Commencement Date and ends on the Expiry Date unless terminated earlier or otherwise extended in accordance with clause The Customer may at the absolute discretion of the Customer extend this Agreement by notice in writing for further periods the duration of which is to be determined by the Customer and the total of which must not exceed ten (10) years. 4. MONTHLY EXTENSION OF THE TERM The Customer may extend the Term from month to month by notice in writing to the Supplier and in such event the terms of this Agreement will apply to the Term as extended from time to time, with the necessary changes being made. 5. SUPPLIER ACKNOWLEDGEMENTS The Supplier acknowledges that prior to entering this Agreement it has made such enquiries and examined such information as it considers necessary to satisfy itself: 5.1 as to the nature, scope, extent and degree of difficulty of the Services to be performed by it pursuant to this Agreement; 5.2 as to its ability to complete the Services to a high professional standard and within the time specified in this Agreement; and 5.3 as to the availability of suitably qualified and experience personnel, and all other facilities, information, data and material which it is required to provide for the purpose of undertaking the Services. M FS doc BABAR / 19/12/2012

13 Page 9 of REPRESENTATIVES 6.1 The parties appoint the persons named in Schedule 1 as their respective Representatives. Each Representative has authority to: exercise all of the powers and functions of his or her party under this Agreement; and bind his or her party in relation to any matter arising out of or in connection with this Agreement. 6.2 A notice served on a Representative is taken to be notice to that Representative s party. 6.3 The Supplier must comply with the reasonable instructions given by the Customer s Representative. 7. PERFORMANCE GUARANTEE 7.1 Prior to commencement of the provision of the Services, the Supplier must provide a performance guarantee from the related corporation of the Supplier specified in Schedule 1 ( Guarantor ), pursuant to which the Guarantor undertakes to fulfil the Supplier s obligations under this Agreement in the event of default by the Supplier. 7.2 A performance guarantee provided by the Supplier pursuant to this clause must be in the form set out in Attachment 7of this Agreement. 8. PROJECT MANAGEMENT 8.1 The parties acknowledge and agree that the management structure and decision making procedures referred to in this clause will be utilised for all stages of the Project with the intention of providing timely and effective management of any issues that may arise during the course of the Project. 8.2 The delivery of the Project tasks under this Agreement will be managed in accordance with the following procedures: The parties will each have a Project Manager who has the authority to bind his or her party in relation to the day to day conduct of the Project All communications between the parties in relation to the day to day conduct will pass between the parties Project Managers or escalated in accordance with clause Each party nominates as its Project Manager the persons identified in Schedule The Customer will make all final decisions in relation to the scope of the Project. Where a decision would impact upon the timeframe or cost of the Supplier s performance of its obligations under this Agreement the parties will meet and agree upon a mutually acceptable solution Any decisions which would effectively vary the scope of the Services or impact upon the Fee must first be agreed upon by the Project Managers. A variation of this Agreement must be in writing, and signed by an appropriately authorised representative of each party. M FS doc BABAR / 19/12/2012

14 Page 10 of The Project Schedule The Supplier must cooperate with the Customer to finalise a project schedule, in accordance with the requirements set out in Schedule 1, that is satisfactory to the Customer ( Project Schedule ). 8.4 Project Meetings Unless otherwise agreed by the parties, Project meetings will be held at a mutually convenient location or via mutually acceptable telecommunication means during any stage of the Project: (a) during the provision of the Implementation Services, on a weekly or fortnightly basis or as determined by the Customer; (b) (c) subsequently, on an annual basis; by exception, as required by either party The Project Meetings will be attended by each party s Project Manager and other persons invited by the Project Managers from time to time The standing agenda for each Project meeting will comprise at least the following items: (a) (b) (c) (d) matters arising from the previous meeting especially the resolution of issues not resolved at that meeting; proposed variations to this Agreement (which must be agreed by both parties); the tabling and discussion of a written report from the Supplier outlining progress against the Project Schedule; the tabling and discussion by either the Supplier or the Customer of issues that may/will impact on the Project Schedule The Customer will maintain written minutes of each Project meeting and will distribute the minutes to all attendees as soon as possible after each meeting and at least one working day prior to the next meeting. 8.5 Review of Customer s Specifications and Project Schedule The Supplier must cooperate with the Customer to review the Project Schedule as required to meet the Customer s Specifications and in consultation with the Customer: (a) revise, amend and further develop the Project Schedule and the Customer s Specifications to achieve satisfactory outcomes in respect of the issues raised in the Customer s Specifications; (b) (c) prepare Technical Specification for the Configured Software; and document a change management procedure to record and approve agreed changes to Customer s Specifications and the Technical Specifications. M FS doc BABAR / 19/12/2012

15 Page 11 of IMPLEMENTATION 9.1 The Supplier must provide the Implementation Services as described in Schedule 12 to ensure the Software and the System comply with the requirements of this Agreement. 9.2 The Supplier acknowledges and agrees: that the implementation of the Project will be staged as described in Schedule 1; and the Customer is under no obligation to proceed with Phase 2 after the completion of Phase Subject to clause 9.2 and provided the Customer carries out its obligations as described in Schedule 12, the Supplier must complete the installation of the Licensed Software for Phases 1 and 2 of the Project by the respective Installation Dates. 9.4 If the Customer does not wish to proceed with Phase 2 in accordance with clause the Customer: will provide written notice to the Supplier; and will not be liable for any fees for Phase Subject to clause 9.2, all terms and conditions of this Agreement will apply to all stages of the Project. 10. SUPPLIER S OBLIGATIONS 10.1 The Supplier must perform the Project, and provide the Services and Deliverables specified in, and in accordance with, the Customer s Specifications and the terms of this Agreement The Supplier must in accordance with this Agreement ensure the Services and Deliverables comply with the Specifications, standards and service levels as specified in the Schedules. The Supplier will comply with reasonable directions given by the Customer in discharging these obligations The Supplier must provide the Services: in a proper, competent and professional manner; in accordance with the best practices current in the Supplier s profession; with due care, skill and diligence; in a timely and expeditious way; in a way that will prevent injury to or death of persons or damage to property; strictly in accordance with: (a) all applicable laws; and (b) any reasonable policies and directions of which the Customer gives notice to the Supplier from time to time; where relevant, using consumables that are: (a) of the highest quality; (b) free from any latent Defects or deficiencies; M FS doc BABAR / 19/12/2012

16 Page 12 of 39 (c) fit for their purpose; and so as to avoid any disruption of or interference to the business or other activities conducted or carried on by the Customer or any other person Consultation The Supplier must: notify the Customer promptly if any information or any document provided by the Customer is insufficient or inaccurate; and ensure that it consults with the Customer as much and as often as is reasonably necessary to inform itself of or confirm the Customer s requirements Customer s premises The Supplier agrees, when using the Customer s premises, to comply with all reasonable directions of the Customer, including but not limited to documented procedures relating to occupational health, safety and security in effect at those premises In addition, the Supplier agrees that when working on the Customer s premises, it will comply with all applicable Commonwealth, State and local government laws, regulations and procedures relating to occupational health and safety The Supplier acknowledges that it is authorised by the Customer to enter and remain on the Customer s premises only for the purpose of performing its obligations under this Agreement Records The Supplier must keep true and accurate records and accounts containing all information relating to the supply of the Services as required to be kept by law or good management practices ( Records ) The Customer may inspect the Records at any time by giving the Supplier twenty four (24) hours written notice of this requirement The Customer may make copies of any Records required to be kept under this clause Reporting Requirements The Supplier must promptly provide to the Customer: the reports specified in Schedule 1; any other reports specified in this Agreement and/or an Individual Supply Contract; and any other information reasonably required by the Customer Training The Supplier must provide the training specified in Schedule 1, at the price specified in Schedule The Supplier must provide suitable training materials derived from the Documentation to all trainees and as described in Schedule 1. M FS doc BABAR / 19/12/2012

17 Page 13 of The Supplier must provide training to any persons nominated by the Customer in writing in relation to any Update or New Release or modification of the Software at a fee to be agreed by the Customer Customer Data The Supplier must ensure that its software and systems are secure and take whatever steps as are necessary to ensure that Customer Data is not lost, corrupted or accessed by unauthorised users or in an unauthorised way The Supplier must ensure that records are maintained of all access, or attempted access to Customer Data such that the details of any attempted unauthorised access or access by unauthorised users are recorded for subsequent tracing The Supplier must, in complying with its obligations under this Agreement with respect to back-up, restoration and disaster recovery, develop and comply with procedures that ensure that in the event of corruption or loss of any Customer Data, full restoration can be made in a prompt, efficient and accurate manner If any Customer Data is lost, destroyed or altered whilst stored on the System without fault on the part of the Customer, the Supplier must take all practicable measures at its own cost and regardless of cost, convenience or technical difficulty, to immediately restore the material without additional charge The Supplier must ensure that the Customer has access at all times and in any manner to the Customer Data whilst in possession or under the control of the Supplier. Such access must be available to the Customer unconditionally, without prior notice and at no additional charge Data Security The Supplier must: comply with all Customer data security requirements in respect of access to, use of, and destruction of data, in addition to any statutory obligation relevant to data security; only use data provided by the Customer for the purpose of performing the Supplier s obligations under this Agreement; prohibit and prevent any person who does not have the appropriate level of security clearance from gaining access to data; and notify the Customer immediately and comply with all directions of the Customer if the Supplier becomes aware of any contravention of the Customer's data security requirements Security Acknowledgment by Supplier The Supplier acknowledges and agrees that: the Customer holds and deals with highly sensitive and Confidential Information; the Customer is concerned that such information must not be improperly used or disclosed contrary to this Agreement or any laws; and M FS doc BABAR / 19/12/2012

18 Page 14 of use or disclosure of such information contrary to this Agreement may constitute a breach to which clause 39 applies Compliance with Criminal Law (Forensic Procedures) Act and Regulations The Supplier must comply with the provisions of the Criminal Law (Forensic Procedures) Act 2007 ( the Act ) and the Criminal Law (Forensic Procedures) Regulations 2007, to the extent they are applicable, in performing its obligations under this Agreement, including any provisions applicable to the Supplier if the Supplier, or its officer, employee, adviser, agent, consultant or sub-contractor is issued a delegation or authorisation under the Act Customer Material The Supplier must deliver all original Customer Materials (and any copies in the Supplier s possession) and any other material containing any Customer Data, to the Customer: on the termination or expiry of this Agreement; or at any other time the Customer reasonably requests Publicity The Supplier must not make or permit to be made any public announcement or media release about any aspect of this Agreement unless the Customer first gives the Supplier its written consent Service Levels The Supplier must perform the Services in accordance with the Service Level Agreement. The Supplier must at all times when providing Services to which the Service Level Agreement applies: monitor the provision of those Services to ensure that the Services are provided in accordance with the Service Level Agreement; maintain for two (2) years records of that monitoring in a form approved by the Customer and provide the Customer with access to, or copies of, those records on request; notify the Customer of the results of that monitoring as frequently and in such a form as the Customer requires from time to time; consult as necessary with the Customer in order to provide the Customer with such information relevant to the Services as the Customer reasonably requires concerning the anticipated future performance of the System; co-operate with all Service review procedures reasonably implemented by the Customer; and implement such recommendations as may reasonably be made by the Customer in order to ensure the Services continue to comply with the requirements of this Agreement Designated Operating Environment The Supplier must, on request by the Customer, supply any information and assistance reasonably required by the Customer to enable the Customer to prepare the Designated Operating Environment. M FS doc BABAR / 19/12/2012

19 Page 15 of Telecommunications The Supplier must warrant and produce to the Customer the necessary consents for the connection of the System to any telecommunications facility The Supplier must not modify the System in a manner that would prejudice the System s continued connection to the telecommunications facilities to which it is connected from time to time If after the date of this Agreement, the provider of the telecommunications facilities to which the System is connected by exercise of any right it has so to do, requires the System to be modified as a condition of its continued connection to those facilities, the Supplier must agree to make those modifications. The cost of those modifications will be borne by the Supplier to the extent they are not recoverable from the provider of the telecommunications facilities Electronic Data Exchange The Supplier must comply with any procedures of the Customer in relation to electronic data interchange notified to the Supplier and must ensure that any information sent by it either electronically or otherwise to the Customer does not corrupt the Customer s computer systems and is not accessible by other parties. 11. CUSTOMER S OBLIGATIONS The Customer must: 11.1 maintain the Designated Operating Environment; 11.2 use reasonable endeavours to respond promptly and accurately to all reasonable requests by the Supplier to provide information required for the performance of the Services; 11.3 allocate appropriately skilled personnel to perform its obligations; 11.4 co-ordinate goods and services provided by third parties; and 11.5 provide any other resources and facilities specified in Schedule FINANCIAL ARRANGEMENTS 12.1 Subject to clause12.2, the Fee and the payment schedule are specified in Schedule Subject to clause , the Fee and manner of payment for Additional Services will be specified in an Individual Supply Contract The Customer must pay the Fee within thirty (30) days of a receipt of a correctly rendered Tax Invoice issued by the Supplier at the times and in the manner set out in Schedule An invoice is correctly rendered if: the amount claimed in the invoice is due for payment; the amount specified in the invoice is correctly calculated in accordance with Schedule 8; M FS doc BABAR / 19/12/2012

20 Page 16 of the invoice is set out in a manner that enables the Customer to ascertain which of the Services or products (in the event that such charges are separately declared) the invoice covers and the Fees payable in respect of those Services or products; the invoice is accompanied by documentation that provides evidence that the amount specified in the invoice is in accordance with this Agreement; and the invoice is addressed to the Customer s Representative and identifies this Agreement If the Customer disputes a claim for payment, the Customer must pay any undisputed portion All Fees are inclusive of any government rates, duties, taxes and charges payable in respect of the Services in force at the Commencement Date, excluding GST Travel and Accommodation Expenses Prior to the commencement of Phase 1 the Supplier must in consultation with the Customer develop and submit to the Customer a Travel Plan for approval If the Customer accepts the Travel Plan the Customer will at the Customer s absolute discretion provide written notice of approval to the Supplier If the Customer has any queries or rejects any part of the Travel Plan the Customer will notify the Supplier accordingly The Supplier must work co-operatively with the Customer to address all concerns of the Customer as notified by the Customer in accordance with clause The Supplier must provide an amended Travel Plan to the Customer which addresses all of the concerns of the Customer as described in clause The Travel Plan must address all of the requirements described in Item 5 of Schedule 8; The Supplier agrees that all travel, accommodation and any other expenses including but not limited to mobile internet allowances, travel time allowances and road tolls will be required to be approved by the Customer before expenditure is incurred by the Supplier The Supplier agrees; (a) (b) the Travel and Accommodation Budget reflects an estimate of the travel and accommodation costs to provide the Services for Phase 1 and Phase 2 of this Agreement, and the Travel and Accommodation Budget may be refined as part of the Travel Plan, however, the Customer will not be obliged to pay for any Supplier accommodation and travel expenses exceeding the Travel and Accommodation Budget, unless otherwise agreed by the Customer. M FS doc BABAR / 19/12/2012

21 Page 17 of ABN, GST Registration The Supplier represents that: (a) it is registered under the A New Tax System (Australian Business Number) Act 1999 (Cth), and that the ABN shown in Schedule 1 is the Supplier s ABN; (b) it is registered under the GST Act; and (c) the supply of Services under this Agreement will be a Taxable Supply The Supplier acknowledges that should these representations be or become incorrect: (a) the Customer may be obliged under the Taxation Administration Act 1953 (Cth) to deduct a withholding from the Fee and will not be obliged to gross up the Fee or make any other compensation to the Supplier; and (b) if the supply of Services is not a Taxable Supply, the Customer is entitled to reduce the Fee by the amount which would have been attributable to GST had the supply been a Taxable Supply. 13. LICENCE 13.1 The Supplier grants to the Customer a non-exclusive, perpetual, irrevocable, royalty free licence to: use the Software and the Documentation; copy the Software into machine readable form; use the Software on the System, subject to any restrictions specified in Schedule 2; use the Software on any backup hardware whilst the System is temporarily inoperable, or on any replacement hardware; transfer the licence to an agency or instrumentality of the South Australian Government, subject to prior written notice to the Supplier and subject further to the other agency or instrumentality agreeing with the terms of the licence Subject to clause , the licence granted to the Customer may not be transferred without the prior written consent of the Supplier (which will not be unreasonably withheld) The Software is licensed for the number of concurrent users as specified in Schedule 2 and may be installed on any individual computer, consisting of any combination of stand-alone computers or networked file servers that allow access to multiple users, provided those computers are: owned or controlled by the Customer;or used by a third party for the hosting of training for the Customer The Customer may make unlimited copies of the Software for: Operational use, backup and security; and In-house educational and training purposes. M FS doc BABAR / 19/12/2012

22 Page 18 of The Customer may purchase Additional Concurrent User Licenses at the Additional Software Concurrent User Fee as described in Schedule Any purchase of Additional Concurrent User Licenses by the Customer will form an Individual Supply Contract as described in clause 24 of this Agreement. 14. DOCUMENTATION 14.1 At the time of delivery of the Software, the Supplier must supply to the Customer copies of the Documentation in the quantities and format specified in Schedule The Documentation must contain sufficient information to enable the Customer to make full and proper use of the Software The Supplier must supply to the Customer copies of any revised or supplementary documentation published in relation to the Software during the term of the licence free of charge The Supplier must ensure that any correction, substitution or modification of the Software made in accordance with this Agreement is reflected in the Documentation supplied to the Customer The Customer may make unlimited copies of the Documentation for: operational use, backup and security; and in-house educational and training purposes. 15. PROTECTION OF SOFTWARE AND SUPPLIER S RIGHTS 15.1 The Customer must: not alter or remove any copyright statement or notice of ownership of Intellectual Property Rights which accompanies the Software; ensure that, prior to the disposal of any media, any Software contained or recorded on that media has been erased or destroyed The Customer must not do anything that would prejudice the Supplier s right, title or interest in the Software. 16. CONFIGURED SOFTWARE 16.1 The Supplier must provide the Configuration Services to the Customer to ensure that the Configured Software: contributes to the complete provision of the System, which must be robust and flexible; is based on, conforms with and is wholly consistent with the Customer s Specifications; utilises readily available off-the-shelf industry standard software, wherever possible; provides for the use of technology which is capable of being updated and maintained by the Customer in a cost effective manner; and M FS doc BABAR / 19/12/2012

23 Page 19 of complies with current international industry standards The Configured Software will be tested in accordance with clause COMMISSIONING SERVICES After acceptance of the Software and the System the Supplier must assist the Customer to commission the System by providing the Services specified in Schedule 5 and/or the Project Schedule ( Commissioning Services ). 18. TESTING AND ACCEPTANCE 18.1 The parties must cooperate to test the Software and the System in accordance with the Acceptance Tests and this clause Without limiting any obligation arising in respect of this clause, the Supplier must: co-operate fully with and provide all assistance reasonably required by the Customer; and comply with the reasonable directions of the Customer to ensure timely progress and performance of the Acceptance Tests If the System passes the Acceptance Tests, the Customer must promptly issue an Acceptance Certificate If the Customer concludes that the System has failed the Acceptance Tests, the Customer must set out the basis of this conclusion in writing. Subject to consideration of the explanation provided by the Supplier in respect of the failure, the Customer may: waive the requirement for the Acceptance Tests to be satisfactorily completed; conditionally accept the Software and the System, subject to the Supplier agreeing to deliver a work around or to otherwise rectify any outstanding deficiency within a set time frame; or reject either or both of the Software and the System If the Customer rejects the Software and the System, the Customer may terminate this Agreement and require the Supplier to remove the Software Without limiting any other remedy which may be available in these circumstances, if the Customer exercises a right to terminate this Agreement as a result of the failure of the Software and the System to pass the Acceptance Tests in accordance with clause 18.4, provided such failure was not caused by the Customer, and the Supplier removes Software and the System under clause 18.5, the Supplier must repay all money (if any) paid to the Supplier by the Customer under this Agreement The Software and the System will not be deemed to be accepted by the Customer until the Customer has issued an Acceptance Certificate signed by the Customer s Representative Any variation of compliance with or failure to enforce rights in respect of this clause 18 by the Customer must not be construed as a waiver of those rights or otherwise prevent the Customer from rejecting the Software and the System if the System does not pass the Acceptance Tests. M FS doc BABAR / 19/12/2012

24 Page 20 of WARRANTIES AND INDEMNITIES 19.1 Warranties about Software, System performance, and Services The Supplier warrants that: the Software and the System will conform with and provide the facilities and functions set out in the Customer s Specifications, the Technical Specifications, and the Supplier s own specifications; the Software and the System will be free from material errors and Defects in materials, workmanship and installation; the Software and the System will be Date Compliant; the Software and the System as at the date of its installation, and the date of installation of any Update or New Release, will not contain any virus or random and/or in built expiry dates; the Software and the System will be compatible with the Designated Operating Environment; all components of the System will interact with each other so that the System performs according to the Customer s Specifications, the Technical Specifications, and the Supplier s own specifications; the Services will comply with the Service Level Agreement For the purposes of this Agreement material errors means errors in the Software and the System, whether tangible or intangible, which result in a failure of the Software and the System to substantially operate or function as designed or according to the Customer s Specifications, the Technical Specifications or the Supplier s own specifications The Warranty Period commences from the date of acceptance in accordance with clause If at any time during the Warranty Period/s, the Customer believes there is a Defect in the Software such that it does not comply, or cannot be used in accordance, with the Specifications and Documentation, the Customer must notify the Supplier of the perceived Defect Subject to clause 19.6, the Customer may at it absolute discretion: determine the classification of the Defect having regard to the classifications set out in this clause; and may, without prejudice to its other rights under this clause, upgrade the classification if the Supplier fails to respond to rectify a Defect within the times specified in Schedule If the Supplier disputes the classification determined by the Customer in accordance with clause 19.5, the Supplier may escalate that dispute to the Customer s Representative For the purposes of this clause, Defects may be classified in accordance with the classifications specified in the Service Level Agreement in Schedule Without prejudice to any other right or remedy of the Customer (whether arising by statute or otherwise), the Supplier must at its own cost and expense during the respective Warranty Period/s and within Warranty Response Time: respond to the request for rectification; M FS doc BABAR / 19/12/2012