REQUEST FOR TENDER. Research and Evaluation, Communications / Multimedia, Information Technology, and Expert Consultants. for the

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1 REQUEST FOR TENDER Research and Evaluation, Communications / Multimedia, Information Technology, and Expert Consultants for the AITSL Procurement Panel LODGEMENT OF TENDERS Tenders must be lodged by only to: [email protected] SUBJECT: Request for Tender ATTENTION: Karen Mifsud, Senior Project Officer Closing Time and Date: 9:00am AEST, 16 October 2012

2 Disclaimer AITSL is not committed contractually in any way to respondents to this RFT. The issuing of this RFT does not commit or otherwise oblige AITSL to proceed with any phase or part of the project described herein. The figures and estimates contained within this document are indicative only and are supplied as a guide to prospective respondents and as such no warranty to their accuracy is given.

3 Contents SECTION A - INTRODUCTION... 1 Background... 1 AITSL Procurement Policy... 1 SECTION B - CONDITIONS OF TENDER 3 1. Preparation and lodgement of tenders Further information - requests from potential respondents to AITSL Lodgement of tenders Ownership of tender documents Supporting material Tender response Tender to remain open RFT timeframe Cost details GST and other government taxes, duties and charges Privacy Respondents to inform themselves Confidentiality Assessment of tenders Assessment criteria Supplier appointment Information to be provided by the respondent Profile of respondent Further information - requests from AITSL to respondents Subcontracts Statement of compliance Service related issues... 7

4 SECTION C - STATEMENT OF REQUIREMENT 8 5. AITSL Procurement Panel Objective Background Panel Categories Service Requirements Term of Panel Curriculum Vitae Use of the Panel No Guarantee of Work Fees The tender... 10

5 Structure of this Request for Tender This Request for Tender (RFT) document is structured as follows: Section A Section B Section C This Introduction, which provides respondents with an overview of AITSL, the objectives of the AITSL procurement policy, a summary of the structure of this document, and a disclaimer. The Conditions of Tender, which provide respondents with guidance on preparing a tender, advice about the information respondents will need to include, and the evaluation criteria that respondents will need to address to enable a full and fair assessment of their tender. The Statement of Requirement, which provides respondents with a brief background to this RFT details of the services being sought, together with minimum requirements for support and delivery. Separate Attachments Attachment 1 Attachment 2 Attachment 3 Attachment 4 Attachment 5 The Category Selection form which must be completed to indicate the categories for which you are tendering. The Response Form on which you may supply information sought in this RFT. The Declaration by Respondents through which respondents declare that the information contained in their tender is true, which respondents must complete, sign and return with their tenders. The Deed of Standing Offer which is to be executed by successful respondents upon notification by AITSL that they have been selected to the Panel. The Deed of Standing Offer incorporates the General Terms governing the provision of services to AITSL provided by a successful respondent to the RFT. A Compliance Checklist to assist respondents to submit compliant offers. Respondents are asked to return the completed Compliance Checklist to address the requirements of this RFT

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7 SECTION A - INTRODUCTION Background The Australian Institute for Teaching and School Leadership (AITSL) has been established to provide national leadership for Commonwealth, state and territory governments in promoting excellence in the profession of teaching and school leadership. AITSL has responsibility for: defining and maintaining rigorous national professional standards for teaching and school leadership implementing an agreed system of national accreditation of teachers based on these standards fostering and driving high quality professional development for teachers and school leaders through professional standards, professional learning and a national approach to the accreditation of pre-service teacher education courses undertaking and engaging with international research and innovative developments in best practice administering annual national awards for teachers and school leaders working collaboratively across jurisdictions and engaging with key professional bodies. fulfilling the role of assessing authority under the Migration Regulations 1994 for the purposes of skilled migration to Australia as a pre-primary, primary or secondary school teacher. AITSL is registered as a public company limited by guarantee under the Corporations Act 2001 and is subject to the provisions of the Commonwealth Authorities and Companies Act For more information visit: AITSL Procurement Policy The underlying principle of AITSL s procurement policy is that the procedures and methods adopted not only should be, but should be seen to be, beyond reproach. To achieve this AITSL applies the following principles to procurement activities: Value for money Effective risk management Transparency Probity Ethical behaviour 1

8 A comparative analysis of all relevant costs and benefits of proposals is also considered throughout the whole procurement cycle ( whole-of-life costs ). Factors AITSL considers when procuring goods and services include, but are not limited to: a) fitness for purpose b) the experience and performance history of each prospective supplier c) the flexibility to adapt to possible change over the lifecycle of the property or service d) environmental suitability e) whole-of-life costs. 2

9 SECTION B - CONDITIONS OF TENDER 1. Preparation and lodgement of tenders 1.1 Further information - requests from potential respondents to AITSL Enquiries by potential respondents for further information, or queries regarding the RFT, should be made in writing and directed to: Karen Mifsud Senior Project Officer Australian Institute for Teaching and School Leadership [email protected] Such requests will be answered in writing (including by faxed notice or by ) Where, in the opinion of AITSL, further information provided to one potential respondent should be provided to all potential respondents, such information will be given the same distribution as the original RFT. 1.2 Lodgement of tenders Tenders must be lodged before the tender closing date and time: 9:00am AEST, 16 October Tenders will only be accepted by to: [email protected] Subject heading must read: Request for Tender Body of to be marked to attention of: Karen Mifsud, Senior Project Officer Late tenders, subject to the following paragraphs, will not generally be accepted Tenders lodged after the tender closing time specified in paragraph will be taken to be Late Tenders. Late Tenders will be registered separately and may be excluded from the assessment process at the discretion of AITSL Following notification that their submission has failed to meet the tender closing time specified in paragraph and is deemed to be a Late Tender, the relevant respondent may be asked to provide explanatory evidence in an appropriate form for consideration by AITSL The circumstances surrounding submission and receipt of the Late Tender will form the basis of the judgement on its admission to, or exclusion from, the assessment process. The most important issue from the perspective of probity is whether the late respondent is likely to have had an opportunity to obtain some advantage from late submission A number of factors may be taken into account in deciding whether to accept late tenders. Some relevant considerations: a. how late the tender is b. the reasons given for lateness and evidence available c. the length of time allowed for the preparation of the tender d. evidence of unfair practices. 1.3 Ownership of tender documents All tenders will become the property of AITSL upon lodgement Intellectual property rights in the tender do not pass to AITSL with the property in the tender itself. However, by submission of the tender, the respondent licences AITSL to 3

10 use and copy any tender document to the extent necessary to conduct an efficient assessment process. 1.4 Supporting material Supporting material is material additional to the formal tender and elaborating or clarifying the formal tender, but not altering it in any aspect. Supporting material may be provided by the respondent or at the request of AITSL Supporting material must be provided by the deadline set for lodgement of tenders, unless specifically requested by AITSL subsequent to that date The submission of supporting material, except where requested by AITSL, must be clearly identified in the formal tender, and must include the relevant document name and page reference where the material can be found Unsolicited supporting material received after the lodgement date will not be taken into account in the assessment of tenders Material presented as supporting material, but which effectively alters the formal tender, will not be taken into account in the assessment of tenders. 2. Tender response 2.1 Tender to remain open A tender made in response to this RFT will remain open for acceptance for a period of six months from the closing date of this RFT An unsuccessful tender will expire on receipt by the respondent of written notification from AITSL that the tender was unsuccessful. 2.2 RFT timeframe The timeframe proposed for the RFT process is as follows: closure of RFT 9:00am AEST, 16 October 2012 completion of tender assessment mid November 2012 (c) final advice to respondents end November Respondents are advised that the timeframe is indicative only. 2.3 Cost details Offered prices must be in Australian currency and include GST if applicable, or identify as GST exempt Respondents must provide a break-down of hourly and daily fees of personnel specified in their tender and confirmation of other relevant disbursements, for example travel costs. Cost should be stated inclusive of GST, unless you are GST exempt. Offered prices will remain firm for the term of the Deed of Standing Offer. 2.4 GST and other government taxes, duties and charges The basis of Australian tax that will apply to a Deed of Standing Offer, entered into as a result of success under this RFT, is that governed by Australian GST tax legislation, as amended from time to time. Invoicing and receipting procedures for the supplies will be in accordance with A New Tax System (Goods and Services Tax) Act 1999 ( the GST Act ) Respondents are advised that, subject to paragraph above, all other taxes, duties and charges imposed or levied in Australia or overseas in connection with the 4

11 performance of a contract, executed as a result of success under this RFT, must be borne by the successful respondent. 2.5 Privacy Respondents are advised that under the terms and conditions of the sample Deed of Standing Offer at Attachment 4 the successful contractor will be required to take all reasonable measures in regard to compliance with the use of any Personal Information obtained, acquired or provided while under any contract to accord with the provisions of the Privacy Act 1988 (Cth), as amended from time to time. 2.6 Respondents to inform themselves The onus is on the respondent to be aware of the contents of this RFT Respondents must specifically respond in order to every condition, statement of requirement and query raised in the RFT Respondents are considered to have examined the RFT and any documents referred to in the RFT and any other information made available in writing by AITSL to respondents for the purpose of responding and satisfied themselves as to the correctness and sufficiency of their tenders including proposed prices AITSL will not accept responsibility for any misunderstanding arising from the failure by a respondent to comply with the statement of requirement or arising from any ambiguity contained in the respondent's offer. Respondents are encouraged to contact the person identified in section of this RFT if they have any queries Where proforma documents have been provided, tenders should conform to the proforma. Where no proforma has been provided, tenders should be clear, concise and relevant. 2.7 Confidentiality Respondents are advised that AITSL is not subject to the Commonwealth Freedom of Information Act (FOI) 1982; however, the company will keep response information identified as confidential AITSL must comply with legal processes and court orders that provide for the release of documents. 3. Assessment of tenders 3.1 Assessment criteria Respondents are advised that tenders will assessed by an evaluation panel against the criteria listed below, which are not in order of priority. No. Criteria 1 Professional Competence Qualifications of all personnel specified Demonstrated experience including projects for education / government or large organisations previously undertaken Relevant knowledge and expertise 2 Quality Quality of the tender, including an understanding of the requirements of the work that is likely to be requested of panel members Inherent risks in the tender and how the risks can be managed by the respondent 5

12 No. Criteria 3 Understanding Demonstrated understanding of the Australian education context and AITSL s objectives; and the ability to work in partnership with AITSL and, where required, its stakeholders 4 Fees Value for money Respondents are asked to provide a break-down of hourly and daily fees of personnel specified in the tender, and confirmation of other disbursements, e.g. travel costs (must include GST- unless exempt) AITSL reserves the right to seek further information from, or to enter into negotiations with, one or more respondents prior to finalising the appointment of successful respondents, without notifying other respondents Best and final offers may be sought before entering into any negotiations but should not be relied on for any submission to this RFT Supplier appointment The Panel will appoint within each of its categories individuals, organisations and / or consortia with demonstrated expertise, experience and capacity, available to undertake any or all of the service delivery requirements shown in AITSL reserves the right not to appoint any respondent as a contractor and not to accept a non-complying response or the lowest offer. No response will be deemed as successful, or a successful respondent be deemed appointed, until AITSL has notified the respondent in writing AITSL may, at its sole discretion elect to refresh the panel membership during the term of the Deed of Standing Offer. 4. Information to be provided by the respondent 4.1 Profile of respondent Respondents will provide the following information, in the appropriate response form at Attachment 2, as part of their tenders: (c) (d) (e) (f) (g) (h) (i) full legal name of respondent any trading or business name if a company: (i) (ii) (iii) registered office principal place of business and address date and place of incorporation if registered for business purposes in Australia, the ABN and ACN individual shareholders holding 5% or more of any issued share capital any related entity within the meaning of the Corporations Act particulars of any petition, claim, action, judgement or decision which would be likely to affect adversely the respondent s capacity to provide the requirement declaration of any potential conflict of interest demonstrated financial viability - most recent independent audited financial statements and any other relevant financial or business information. 6

13 4.2 Further information - requests from AITSL to respondents Each respondent is asked to nominate a person to answer any queries that may arise during the examination of tenders. The name, title, address, address and telephone number of that person must be included in the Declaration by Respondents at Attachment Where it is necessary for AITSL to direct specific queries to respondents during the assessment process, the respondent may be requested to respond in writing to such queries and must do so within three working days. The assessment process will not be delayed by late responses. Where answers to specific queries are not provided promptly, assessments will be based on the information already provided in tenders. 4.3 Subcontracts Respondents are advised that selected Contractor must not subcontract the whole of their obligation but may, with the prior consent in writing of AITSL, subcontract part of their obligation. This is required to be disclosed as part of the RFT response Respondents will provide, in the appropriate response form at Attachment 2, the names, addresses and addresses of subcontractors and other details of current and proposed subcontractors for elements of the offered services, and update the same from time to time. 4.4 Statement of compliance Respondents will provide a Statement of Compliance that addresses each clause of the RFT and the sample Deed of Standing Offer. Respondents must complete and return the Compliance Checklist at Attachment Where there is no response to a clause the respondents will be deemed, for assessment purposes, as not complying Where respondents wish to place conditions upon complying with individual clauses (partial compliance), or do not wish to comply with a clause (non-compliance), they should detail the extent of and reasons for such partial or non-compliance As partial or non-compliance will be considered during the assessment of tenders, any significant non-compliance with the terms and conditions of this RFT and sample Deed of Standing Offer may render a tender ineligible for further consideration. 4.5 Service related issues Respondents will ensure that their responses provide AITSL with details and information sufficient to assure AITSL that: the respondent's company infrastructure and financial basis will support the provision of the service level proposed by the respondent. the service levels being offered will be guaranteed and maintained to meet AITSL s needs and requirements throughout the term of the Deed of Standing Offer. 7

14 SECTION C - STATEMENT OF REQUIREMENT 5. AITSL Procurement Panel 5.1 Objective AITSL is seeking to establish a Procurement Panel of individuals and organisations with expertise in four categories The Panel will appoint within each category individuals, organisations and / or consortia with demonstrated expertise, experience and capacity, available to undertake any or all of the service delivery requirements shown in Background In June 2011 AITSL established a Research and Evaluation Panel. This Panel was developed through an open tender approach to market. Its current members are 23 individuals, private-sector / not-for-profit organisations, universities and consortia with recognised innovative and contemporary practice and demonstrated expertise, experience and capacity on research and evaluation The intent of this Panel is to simplify and streamline procurement through immediate access to a range of skilled and experienced providers to assist in AITSL s work. The Panel provides a list of recognised providers that meet baseline expectations; establishes consistent expectations, timeframes and formats for approaches to the market and submission of quotes; and alleviates the need to negotiate a separate contract with a chosen provider for a specific project Due to the increase and complexity of AITSL s work, AITSL is seeking to: expand the scope of the Panel to include three additional categories; and re-name the Panel the AITSL Procurement Panel In August 2012 formal approval was given to broaden the Panel to include four distinct categories. AITSL is inviting tenders from individuals, organisations and / or consortia to demonstrate their expertise, experience and capacity for membership of some or all Panel categories AITSL will enter into a Deed of Standing Offer arrangement with each of the selected panel members The Panel expansion will not affect current Research and Evaluation Panel members. Current Panel members will not be required to reapply, but may wish to put forward a tender for one or more of the three new categories. 5.3 Panel Categories 1. Research and Evaluation: Work likely to be commissioned in this category includes: a) Research: scoping and designing research; drawing from and using a range of appropriate methodologies; consultations; qualitative and quantitative analyses; and synthesis of findings. Examples could include literature reviews, environmental scans, case-studies, benchmarking analysis and surveys and interviews. b) Innovative Practice: identification of, engagement in and modelling of innovative, contemporary and creative practices. Examples could include use of social networking and / or interactive online communication tools. c) Evaluation services: designed to enhance the success and effectiveness of ongoing policy and program development and implementation activities. Examples could include validation research and pilot studies. 8

15 2. Communications / Multimedia: Work likely to be commissioned in this category includes: a) Video Production, including photography or videography services within an educational context b) Design, including the finished art and the press ready art. Examples could include production of annotated artefacts that could be used to capture a realistic impression of the teaching industry. c) Print Production, including commercial printing and finishing services, such as reports, publications, promotional material or business cards; with the capacity to provide printing for both low / high volume orders. d) Strategic Marketing Advice. 3. Information Technology: Work likely to be commissioned in this category includes: a) Project Management b) Business Strategy and Business Analysis c) Systems and Solutions d) Web Hosting e) Training Delivery 4. Expert Consultants: Experts with an understanding of the national or international education environment that are able to dynamically contribute to the objectives and overall strategic direction of AITSL. This could be through the provision of advisory services, writing, analysis or mapping. 5.4 Service Requirements Services will include, but are not limited to, undertaking projects aligned with AITSL's objectives. The services may differ in size, scope and complexity, will have regard to both national and international education contexts and should embrace innovative and contemporary practices, methodologies and presentations Panel members will be required to deliver outcomes of a high quality and within agreed timeframes which are consistent with the project objectives, purpose and audience/s and with regard to AITSL s overall priorities Panel members will be required to manage projects effectively, including planning, setting and meeting agreed timeframes, and agreeing and meeting budgets Carefully review the various panel categories and sub-categories for which you may be suitable. Complete the Category Selection form at Attachment 1. Whilst you may apply for as many categories as you wish it is strongly recommended that you limit your application to those categories for which you have the requisite skill sets. 5.5 Term of Panel Successful respondents will form a non-exclusive panel from which AITSL can draw upon through a streamlined processes to meet its operational and strategic requirements to 31 October The Panel may, at the sole discretion of AITSL, be extended for a further period not exceeding 2 years. Such extension will be on the same terms and conditions as in the Deed of Standing Offer, unless AITSL determines otherwise. 9

16 5.6 Curriculum Vitae On acceptance of a position on the Panel, contractors will be required to provide AITSL with current curriculum vitae. AITSL will use these for the purpose of choosing which panel members to approach for a quote for particular services. Contractors will also be required to provide AITSL with an updated curriculum vitae when appropriate during the term of the Deed of Standing Offer Respondents should not provide a curriculum vitae for themself, or relevant personnel in their organisations in responding to this RFT. 5.7 Use of the Panel AITSL, at its sole discretion, will determine which (if any) contractors may be suitable to provide services as required. The allocation of work for individual contractors will be consistent with the Deed of Standing Offer and have regard to the following principles: relevant expertise and / or specialist knowledge for a specific project ability to perform work within the required timeframes the ongoing quality of the Services you provide to AITSL as a member of the panel under the Deed of Standing Offer AITSL will issue a request(s) for quote to the contractor(s) outlining the required services, timelines and other details necessary to enable the contractor to provide a quote(s) AITSL may consult with or request a quote for the provision of services from any, all or none of the contractors If AITSL accepts a quote(s), it will inform the contractor in writing of that acceptance by returning to the contractor the duly executed quote The contractor will undertake the services set out in accordance with the General Terms The Panel will be non-exclusive, with AITSL reserving the right to procure services from outside the Panel if its objectives can be better met in this way. 5.8 No Guarantee of Work AITSL is required to achieve value for money for all purchases under the planned panel arrangement. Accordingly, no volume of work is guaranteed to any one panel member. 5.9 Fees Respondents are required to provide indicative hourly and daily fees for personnel specified in the response and confirmation of other disbursements, for example travel costs AITSL will use the indicative fees when assessing value for money Contractors indicative fees will not be specified in their Deed of Standing Offer. Once selected on the Panel, fees for a particular service will be the subject to AITSL s acceptance of a written quote from a contractor(s). However, AITSL will refer to panel members tendered indicative fees as a guide for choosing which contractor(s) to approach for a quote for a particular service The tender Respondents are requested to provide a tender which demonstrates their capability and capacity to be a member of the Procurement Panel to provide the services outlined in clause 5.3. In particular, the tender must include: 10

17 (c) (d) (e) (f) (g) details of the individual, organisation and / or consortium submitting the tender. This must include: name of the individual, organisation or consortium contact person names of personnel postal address telephone. a description of capability, including knowledge, expertise and experience, to provide services effectively and to a high quality in any or all of the categories outlined in clause 5.3. This should include previous successful undertaking of such work. a demonstration of your understanding of the Australian education context and AITSL s objectives; and the ability to work in partnership with AITSL and, where required, its stakeholders. a demonstration of your capacity to provide the services within the specified timeframes. an indicative breakdown of fees, including hourly and daily rate, and confirmation of other disbursements, for example travel costs. the name and contact details of two referees who can attest to the claims above, whom AITSL could approach as part of their assessment process. information as set out in clause 4 above. 11

18 ATTACHMENT 1 - Category Selection Tick each category to which your tender applies. Panel Category Com Research and Evaluation Communications / Multimedia Information Technology Expert Consultant

19 ATTACHMENT 2 - Response Form Profile of Respondent - Refer to Section B, Clause Full legal name of respondent Any trading or business name If a company: registered office principal place of business date and place of incorporation If registered for business purposes in Australia, the ABN and ACN Individual shareholders holding 5% or more of any issued share capital Related entities within the meaning of the Corporations Law Particulars of any petition, claim, action, judgement or decision which would be likely to affect adversely the respondent s capacity to provide the requirement Declaration of potential conflict of interest

20 Subcontracts - Refer to Section B, Clause Details of subcontractors, including details of proposed subcontracts for elements of the offered goods and services that will be major in terms of quality, technical significance or price Name: Address: address: Telephone: Name: Address: address: Telephone: Name: Address: address: Telephone:

21 ATTACHMENT 3 - Declaration by Respondent The respondent offers to provide the services described at the prices offered and on the conditions set out in this Request for Tender. The respondent declares that the information contained in this tender is true. Name: Signature: Official Position Held: Date: Duly Authorised to Sign Tenders for and on Behalf of (state full name of Company): Registered Address: Postal Address: Address: Refer Enquiries to: Telephone: ( ) (please print) Facsimile: ( )

22 ATTACHMENT 4 DEED OF STANDING OFFER between Australian Institute for Teaching and School Leadership Limited (AITSL) and (Contractor) THIS DEED OF STANDING OFFER is made on the...day of AITSL: RFT: : Draft Procurement Panel Deed of Standing Offer 1

23 BETWEEN THE AUSTRALIAN INSTITUTE FOR TEACHING AND SCHOOL LEADERSHIP LIMITED ABN of Level 7, 440 Collins Street, Melbourne, Victoria, 3000 ( AITSL ) AND (insert details of Contractor) (the Contractor ). Recitals (c) (d) (e) (f) AITSL wishes to appoint a panel of suppliers to provide certain services to AITSL for the period November 2012 to 31 October 2014, with a possible 2 year extension To achieve this, AITSL has called for tenders for the provision of such Services by way of the RFT. AITSL has selected a number of tenderers to the RFT, including the Contractor, to be on the Panel. As a member of the Panel, the Contractor is one of a number of suppliers whom AITSL may call upon to supply Services to AITSL. Under the terms of the RFT, successful tenderers are required, upon being advised of their selection to the Panel by AITSL, to execute this Deed of Standing Offer, confirming the terms upon which services provided pursuant to the RFT will be supplied. To the extent that: (i) (ii) the Contractor is requested by AITSL to provide a quote for particular services pursuant to the arrangements contemplated by the RFT the Contractor is selected by AITSL to provide those services the Contractor will provide those services to AITSL on the terms and conditions contained in this Deed. The Parties agree as follows: 1 Definitions and interpretation 1.1 In this Deed, unless the context or subject matter otherwise requires: Business Day means a day which is not a Saturday, a Sunday or a governmentgazetted public holiday in any Australian state or territory capital city. Commencement Date means the date this Deed is signed by the last of the Parties to do so. Confidential Information means information that: (c) is by its nature confidential is marked as confidential is known to be confidential, or which a Party ought to have known was confidential AITSL: RFT: : Draft Procurement Panel Deed of Standing Offer 2

24 (d) (e) (f) (g) but does not include information which: is or becomes public knowledge other than by breach of this Deed or by any other unlawful means or is in the possession of a Party prior to disclosure by the other Party, without any breach of an obligation of confidence or has been independently developed or acquired by a Party or is required to be released by law. Deed means this document including annexures, appendices and attachments. General Terms means the terms and conditions set out in the Annexure 1. Panel means AITSL s Procurement Panel established in accordance with the arrangements contemplated in the RFT. Party means either AITSL or the Contractor and Parties means both AITSL and the Contractor. Quote Form means a document, the pro-forma of which is set out in the Schedule to the General Terms. Request for Quote means a request for a quote for Services issued by AITSL to the Contractor in accordance with clause 2 which request will be in the form of a Quote Form with items 1-6 (inclusive), 9, 12, (inclusive) and 15 duly completed. RFT means the request for tender. Quote means a response made by the Contractor to a Request for Quote which response will be in the form of a Quote Form with all items duly completed and executed by the Contractor. Services means the services which AITSL may request members of the Panel to provide from time to time pursuant to the arrangements contemplated by the RFT. Term means the period from the Commencement Date up to and including 30 June 2013 and any extension pursuant to clause Interpretation In this Deed unless the context indicates a contrary intention: (c) (d) (e) (f) words in the singular number include the plural and words in the plural number include the singular words importing a gender include any other gender words importing persons include a partnership and a body whether corporate or otherwise clause headings, words capitalised or in bold format and notes in square brackets ( [] ) are inserted for convenience only, and have no effect in limiting or extending the language of provisions, except for the purpose of rectifying any erroneous cross-reference all references to clauses, the Annexure and the Appendix are respectively references to clauses of, the annexure to and the appendix of, this Deed and where any word or phrase is given a defined meaning, any other part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning. AITSL: RFT: : Draft Procurement Panel Deed of Standing Offer 3

25 1.3 Priority The documents comprising this Deed are (in order of precedence) as follows: (c) (d) General Terms duly completed Quote executed by both Parties the clauses of this Deed the RFT Where any conflict occurs between the provision contained in two or more of the documents forming this Deed, the document lower in the order of precedence will where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions will be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document. 2 Request for quote and quotes 2.1 If AITSL wishes to obtain a Quote for the provision of Services from the Contractor, it will issue a Request for Quote to the Contractor, outlining the required Services, timelines and other details necessary to enable the Contractor to provide a Quote. 2.2 The Contractor may chose to provide a Quote or not but will inform AITSL in writing within seven days of receipt of a Request for Quote (or earlier if requested by AITSL) of its intention to quote or not. 2.3 If the Contractor has advised AITSL of its intention to quote, it must provide to AITSL its Quote within the time prescribed by AITSL for the return of the Quote (which time period AITSL will provide with the Request for Quote). 2.4 If AITSL accepts the Quote, it will inform the Contractor in writing of that acceptance by returning to the Contractor the Quote duly executed by AITSL. 2.5 AITSL may request Quotes from any, all or none of the Panel members. 2.6 In the event that AITSL has accepted the Quote, the Contractor will undertake the Services set out in Request for Quote in accordance with the General Terms. 2.7 AITSL is under no obligation to accept the lowest Quote or any Quote. 3 Timing and termination 3.1 This Deed will commence on the Commencement Date and terminate on 31 October 2014 or such other date as mutually agreed between the parties. 3.3 AITSL may elect, at its absolute discretion and by written notice to the Contractor, to extend the Term of this Deed for a two year period. 3.4 In the event AITSL makes an election to extend the term of the Deed pursuant to clause 3.3, such further term will be on the same terms and conditions as this Deed (other than clause Either Party may terminate this Deed if the other is in default or in breach of any provision under this Deed provided that the aggrieved Party has first given thirty 30 days notice of its intention to terminate this Deed. If the default or breach has not been remedied at the expiry of the specified time the aggrieved Party may by written notice terminate this Deed. AITSL: RFT: : Draft Procurement Panel Deed of Standing Offer 4

26 3.6 AITSL may terminate this Deed and remove the Contractor from the Panel where the Contractor is the subject of any of the following: bankruptcy, insolvency, appointment of receiver and/or official manager, winding up (whether voluntary or compulsory) (other than for the purpose of reconstruction). 4 Acknowledgements 4.1 The Contractor acknowledges and agrees that: (c) (d) (e) it is one of a number of suppliers on the Panel that may be requested by AITSL to provide Services from time to time nothing in this Deed will be construed as obliging AITSL to: (i) (ii) request a Quote from the Contractor or request any service or any volume of services from the Contractor this Deed does not confer on the Contractor any right to be the exclusive supplier of any of the Services to AITSL AITSL may at any time purchase or acquire services the same as, or similar to, the Services from another supplier on the Panel or from any other person (irrespective of whether such person is on the Panel) on such terms and conditions as AITSL so determines (in AITSL s absolute discretion) AITSL is under no obligation to seek Quotes from any member of the Panel before acquiring Services from any other Panel member or from a person who is not a member of the Panel. 4.2 The Contractor further acknowledges and agrees that: (c) AITSL, in entering into this Deed or engaging in any activity under or in relation to it makes no undertaking, representation or warranty as to the services required by AITSL pursuant to the RFT arrangements it has not relied in any way on any representation either express or implied made by or on behalf of AITSL as to the services required by AITSL pursuant to the RFT arrangements it has conducted its own independent analysis, investigation and appraisal before deciding to respond to the RFT and enter into this Deed. 4.3 The Contractor also acknowledges and agrees that: AITSL will have no liability in relation to the provision of any Services unless and until AITSL executes a duly completed Quote Form if the Contractor provides any Services in the absence of a duly completed Quote Form executed by AITSL, such Services will be entirely at the Contractor s own costs and risk and AITSL will have no liability whatsoever in respect of the provision of such Services (including without limitation, in relation to the payment of any fees to the Contractor on any on any basis whatsoever, including in contract, quasi contract, tort or equity or for breach of any statute or on any other basis). AITSL: RFT: : Draft Procurement Panel Deed of Standing Offer 5

27 5 Updates 5.1 The Contractor will during the Term advise AITSL in writing upon becoming aware of any material change to the Contractor s ability to perform any Services, including without limitation: (c) if at any time the Contractor is unable or is likely to become unable, for whatever reason, to provide any or all of the Services if at any time there is a change to the key personnel of the Contractor (including, without limitation, any person identified by the Contractor in its response to the RFT) if there is any change in relation to certification, licences or other accreditation of the Contractor relevant to the provision of the Services. 5.2 AITSL may at its absolute discretion: (c) add suppliers to the Panel vary the membership of the Panel and add, modify, expand or restrict the services to be provided under the Panel arrangements. 6 Performance measurement 6.1 The Contractor acknowledges and agrees that AITSL may monitor the Contractor s performance in delivering the Services by the use of any method of performance assessment from time to time, as AITSL, in its absolute discretion, deems appropriate. 6.2 The Contractor will cooperate with AITSL in any performance review of Services delivery by the Contractor. 7 Confidentiality 7.1 The Contractor will not, without the prior written approval of AITSL, disclose to any person or third party other than AITSL, any Confidential Information relating to AITSL or the Services. In giving written approval AITSL may impose such terms and conditions, as it thinks fit. 7.2 AITSL will not, without the prior written approval of the Contractor, disclose to any person or third party other than the Contractor, any Confidential Information relating to the Contractor. In giving written approval the Contractor may impose such terms and conditions, as it thinks fit. 7.3 The obligations under this clause 7 will survive the termination or expiry of the Deed. 8 Negation of employment, partnership and agency 8.1 The Contractor will not represent itself as being an officer, employee, partner or agent of AITSL, or as otherwise able to bind or represent AITSL. 8.2 The Contractor is not by virtue of any Agreement an officer, employee, partner or agent of AITSL nor does the Contractor have any power or authority to bind or represent AITSL. AITSL: RFT: : Draft Procurement Panel Deed of Standing Offer 6

28 9 Governing law 9.1 The Agreement is governed by and is to be construed in accordance with the laws applicable in Victoria. 10 Dispute resolution 10.1 Before resorting to external dispute resolution mechanisms or starting court proceedings, the Parties will attempt to settle by negotiation any dispute in relation to an Agreement including by referring the matter to personnel who may have authority to intervene and direct some form of resolution If a dispute is not settled by the Parties within 10 working days of one Party first sending to the other Party written notice that they are in dispute, the dispute may be the subject of court proceedings or may be submitted to some alternative dispute resolution mechanism as may be agreed in writing between the Parties. 11 Entire agreement and variation 11.1 This Deed constitutes the entire agreement between the Parties and supersedes all communications, negotiations, arrangements and agreements, whether oral or written, between the Parties with respect to the subject matter of this Deed No agreement or understanding varying or extending this Deed, will be legally binding upon either Party unless such agreement or understanding is in writing and signed by both Parties. 12 Notices 12.1 A notice, demand, consent, approval or communication under this Deed will be: in writing, in English and signed by a person duly authorised by the sender; and hand delivered or sent by prepaid post or facsimile to the recipient s address set out below which in the case of: (i) AITSL is: [insert]; and (ii) the Contractor is: [insert] or as varied by any notice given by the recipient to the sender A notice given in accordance with clause 13.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received: if hand delivered, on delivery if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia) AITSL: RFT: : Draft Procurement Panel Deed of Standing Offer 7

29 (c) if sent by facsimile, when the sender s facsimile system generates a message confirming successful transmission of the entire notice unless, within eight hours after the transmission, the recipient informs the sender that it has not received the entire notice. but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the notice is taken to be received at 9.00am on the next Business Day. AITSL: RFT: : Draft Procurement Panel Deed of Standing Offer 8

30 EXECUTED BY THE PARTIES AS A DEED EXECUTED by Australian Institute for ) Teaching and School Leadership ) Limited in accordance with section ) 127(1) of the Corporations Act 2001 ) (Cth) by authority of its directors: ) Signature of director Signature of director/company secretary* *delete whichever is not applicable Name of director (print) Name of director/company secretary* (print) *delete whichever is not applicable Date: EXECUTED by [Name of Contractor] in ) accordance with section 127(1) of the ) Corporations Act 2001 (Cth) by authority ) of its directors: ) ) Signature of director Signature of director/company secretary* *delete whichever is not applicable Name of director (print) Name of director/company secretary* (print) *delete whichever is not applicable Date: AITSL: RFT: : Draft Procurement Panel Deed of Standing Offer 9

31 Annexure 1 GENERAL TERMS AITSL: RFT: 11/05-03: Sample General Terms 10

32 1 Definitions and interpretation 1.1 In these General Terms, unless the context or subject matter otherwise requires: Actions means actions, allegations, claims, demands, costs and expenses (including the costs of defending or settling any allegation, claim and demand) made, sustained, brought or presented. Agreement means an agreement formed in accordance with clause 1.3. AITSL means AITSL Australian Institute for Teaching and School Leadership Limited and includes the officers, employees, authorised representatives and agents of AITSL. AITSL Intellectual Property means, in relation to an Agreement, the Intellectual Property which is made available to the Contractor by AITSL, in connection with the provision of the Services by the Contractor. AITSL Material to be provided means, in relation to an Agreement, any Material: provided by AITSL to the Contractor for the purposes of the Agreement; or copied or derived from any Material provided by AITSL pursuant to paragraph of this definition. Commencement Date means, in relation to an Agreement, the date on which the Agreement is signed by the last of the Parties to do so. Business Day means a day which is not a Saturday, a Sunday or a governmentgazetted public holiday in any Australian state or territory capital city. Confidential Information means information that: is by its nature confidential is marked as confidential (c) is known to be confidential, or which a Party ought to have known was confidential or (d) is specified in Item 12 of a Quote as constituting confidential information but does not include information which: (e) is or becomes public knowledge other than by breach of the Agreement or by any other unlawful means or (f) is in the possession of a Party prior to disclosure by the other Party, without any breach of an obligation of confidence or (g) has been independently developed or acquired by a Party or (h) is required to be released by law. Contractor means, in relation to an Agreement, the person referred to in Item 1 of a Quote. AITSL: RFT: 11/05-03: Sample General Terms 11

33 Contractor Background Intellectual Property means, in relation to an Agreement, Intellectual Property owned by the Contractor which was created by the Contractor: prior to the Commencement Date or after the Commencement Date but independently from the provision of the Services. and which Intellectual Property has been used as part of, or in connection with, the provision of the Services. Contract Material means, in relation to an Agreement, all Material: (c) created for the purposes of the Agreement provided or required to be provided to AITSL as part of the services to be provided pursuant to the Agreement or derived at any time from Material referred to in paragraphs or. Deliverables means, in relation to an Agreement, the deliverables arising from the provision of Service as described in Item 4 of the Quote. Fees means, in relation to an Agreement, the total amount of the fees payable to the Contractor in consideration for: (c) the provision by the Contractor of the Services the granting of the rights to AITSL under the Agreement the assumption of obligations by the Contractor under the Agreement as set out in Item 7 of the Quote. General Terms means the terms set out in this document. GST Act means the A New Tax System (Goods and Services Tax) Act 1999, and as amended from time to time. Intellectual Property or IP means statutory and other property rights in respect of trademarks, patents, circuit layouts, copyrights, confidential information and all other intellectual property rights as defined in Article 2 of the Convention establishing The World Intellectual Property Organisation of July Liaison Officer means, in relation to an Agreement, the person referred to in 13 of the Quote. Material means property, documents, equipment, software, goods, information, data stored by any means and any other material of any nature whatsoever and the subject matter of any category of Intellectual Property rights. Milestones means, in relation to an Agreement, the milestones for the provisions of the services to be provided under the Agreement as set out Item 3 of the Quote; Party means either AITSL or the Contractor and Parties means both AITSL and the Contractor. Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion. AITSL: RFT: 11/05-03: Sample General Terms 12

34 Quote means, in relation to particular Services, a duly completed and executed quotation for the provision of those Services, a pro-forma of which is attached in the Schedule. Services means, in relation to an Agreement, the Services described in Item 2 of the Quote for that Agreement. Specified Personnel means the personnel specified in Item 5 of a Quote as personnel required to undertake the Services or part of the work constituting the Services. Term means, in relation to an Agreement, the period of time determined in accordance with clause 3.1. Third Party Intellectual Property means Intellectual Property owned by third parties which Intellectual Property is used by the Contractor in providing the Services. Use of AITSL material specified in clause Interpretation In the Agreement unless the context indicates a contrary intention: (c) (d) (e) (f) (g) words in the singular number include the plural and words in the plural number include the singular words importing a gender include any other gender words importing persons include a partnership and a body whether corporate or otherwise clause headings, words capitalised or in bold format and notes in square brackets ( [] ) are inserted for convenience only, and have no effect in limiting or extending the language of provisions, except for the purpose of rectifying any erroneous cross-reference all references to clauses and the Schedule are respectively references to clauses in, and schedules to, these General Terms all references to dollars are to Australian dollars in these General Terms Where any word or phrase is given a defined meaning, any other part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning. 1.3 Forming an Agreement An Agreement, in relation to the provision of particular Services, consists of a Quote for the provision of those services and these General Terms An Agreement is formed, when AITSL and the Contractor execute a completed copy of the Quote, and the Quote incorporates by reference these General Terms as follows: This Quote incorporates the general terms set out in the annexure to the Deed between AITSL and the Contractor dated [insert date] (the General Terms ) as if the General Terms were set out in full in this Quote. AITSL: RFT: 11/05-03: Sample General Terms 13

35 1.4 Relationship between Quote and General Terms To the extent of any inconsistencies between the General Terms and the Quote, the General Terms prevail to the extent of the inconsistency. 2 Provision of services 2.1 The Contractor will perform the Services. The Contractor will ensure that the Services are performed in a competent, ethical and professional manner. 2.2 The Contractor warrants that its officers, employees or subcontractors, including those nominated in Item 5 of the Schedule [Specified Personnel] have the required knowledge, competence and skill to perform the Services and that it will ensure the Specified Personnel are available to provide the Services. Where such Specified Personnel are not available, AITSL may: terminate the Agreement whereupon it will only be liable for work performed by the Contractor to the date of termination; or ask the Contractor to provide replacement personnel acceptable to AITSL at no additional charge and at the earliest opportunity. 2.3 The Contractor warrants in relation to each Agreement, that at the time of entering into the Agreement, the Contractor has no conflict of interest in relation to the performance of the Services or in respect of the fulfilment of its other obligations under the Agreement, and that such a conflict of interest is unlikely to arise during the term of the Agreement. The Contractor will notify AITSL, in writing, immediately if, during the term of the Agreement, such a conflict of interest does arise or is likely to arise. 3 Timing and termination 3.1 An Agreement will commence on the Commencement Date and terminate on the date identified in the Quote. 3.2 Any Agreement may be terminated by mutual consent. 3.3 Either Party may terminate the Agreement if the other is in default or in breach of any provision under the Agreement (including these General Terms) provided that the aggrieved Party has first given 30 days notice of its intention to terminate the Agreement. If the default or breach has not been remedied at the expiry of the specified time the aggrieved Party may by written notice terminate the Agreement. 3.4 Either Party may terminate the Agreement where the other Party is the subject of any of the following: bankruptcy, insolvency, appointment of receiver and/or official manager, winding up whether voluntary or compulsory (other than for the purpose of reconstruction). 3.5 If the Agreement is terminated in accordance with the provisions of this clause, AITSL is liable only for: payments under the payment provisions of the Agreement for the Services rendered before the effective date of termination any reasonable costs incurred by the Contractor and directly attributable to the termination or partial termination of the Agreement. AITSL: RFT: 11/05-03: Sample General Terms 14

36 3.6 Upon receipt of a notice of termination the Contractor will immediately stop work as specified in the notice and render a tax invoice to AITSL detailing the costs of services and hours spent to date, prior to termination. 3.7 In the event of termination for any reason, all rights of the Contractor granted under the Agreement will terminate and the Contractor must cease to use AITSL s Intellectual Property in any manner whatsoever. The Contractor must deliver to AITSL all copies of AITSL s Intellectual Property, AITSL s Material and Contract Material in the possession, custody or control of the Contractor. 3.8 The Contractor also acknowledges and agrees that: AITSL will have no liability in relation to the provision of any Services unless and until AITSL executes a duly completed Quote Form if the Contractor provides any Services in the absence of a duly completed Quote Form executed by AITSL, such Services will be entirely at the Contractor s own costs and risk and AITSL will have no liability whatsoever in respect of the provision of such Services (including without limitation, in relation to the payment of any fees to the Contractor on any on any basis whatsoever, including in contract, quasi contract, tort or equity or for breach of any statute or on any other basis). 4 Payment, fees, taxation & superannuation 4.1 Subject to the other provisions of these General Terms, AITSL will pay the Contractor the Fees. 4.2 AITSL will pay the Fees to the Contractor in accordance with Item 8 of the Quote. 4.3 Where the Agreement provides that the Contractor is to be paid by progressive instalments, AITSL will be entitled, without derogating from any other right it may have, to defer payment of an instalment until the Contractor has completed to the satisfaction of AITSL that part of the Services to which that instalment relates. 4.4 Without, in any way, limiting the generality of clause 4.3, AITSL may defer the payment of any instalment of the Fees if: (c) (d) (e) (f) if any Milestone has not been achieved by the date for achievement of the Milestone if any Deliverable has not been delivered by the date for the delivery of the Deliverable until ATISL has received any information or report reasonably required by AITSL to verify the completion of the activities (including a Milestone or deliverable) that relates to the instalment any report or information, referred to in clause 4.4(c) as provided is deficient. 4.5 Payment for the Services under the Agreement will be made on submission of a fully compliant tax invoice to AITSL by the Contractor. AITSL: RFT: 11/05-03: Sample General Terms 15

37 4.5 Except as provided by this clause, all taxes, duties and government charges imposed or levied in Australia or overseas (including without limitation all applicable income tax, salary related expenses, insurance and superannuation of its officers, employees, agents or subcontractors) in connection with the performance of the Agreement will be borne by the Contractor. 4.6 If a supply made by the Contractor under the Agreement is a taxable supply under the GST Act, and the payment for the supply is expressed to be exclusive of GST, the Contractor may, by notice in writing to AITSL, increase the original amount payable by AITSL by the amount of GST that is payable by the Contractor on that part of the original amount payable which relates to the taxable supply as if that part of the original amount payable is the value of the supply for the purposes of the GST Act. 4.7 If required by AITSL, the Contractor will substantiate to AITSL s reasonable satisfaction how any increase in the amounts payable by AITSL determined under this clause have been calculated before such changes will take effect. 4.8 In relation to taxable supplies made under the Agreement, the Contractor agrees to issue AITSL with either: a tax invoice in accordance with the GST Act, as amended from time to time or a document satisfying the minimum information requirements set out in GST Regulations to the GST Act, as amended from time to time, to entitle a recipient of a taxable supply to claim an input tax credit without holding a tax invoice The Contractor will keep proper accounts and records in accordance with the Australian Accounting Standards and as required by law in relation to use of the Fees (including payments to any approved sub contractors) In the event that the Fee or any part of the Fee is paid to the Contractor before the Services relevant to such payment are completed and delivered: such fee will be used only to complete the Services and unexpended Fees will be refunded to AITSL. 5 Subcontracting 5.1 The Contractor must not, without AITSL s prior written approval, subcontract the performance of any obligations under an Agreement. In giving approval, AITSL may impose such terms and conditions as it thinks fit. 5.2 The subcontractors AITSL has approved at the date of an Agreement, and any terms and conditions relating to their use, are to be identified in Item 15 of the Quote. 5.3 The Contractor is and remains fully responsible for the performance of its obligations under an Agreement, even if it has subcontracted some or all of its obligations. 5.4 Despite any approval given by AITSL under clause 5.1, the Contractor is responsible for ensuring the suitability of a subcontractor for the work proposed to be carried out and for ensuring that the work meets the requirements of the Agreement. 5.5 Subject to clause 5.8, AITSL may revoke its approval of a subcontractor on any reasonable ground by giving seven days notice in writing to the Contractor. On receipt of the notice the Contractor must, at its own cost, promptly cease using that subcontractor and arrange their replacement with personnel or another subcontractor acceptable to AITSL. AITSL: RFT: 11/05-03: Sample General Terms 16

38 5.6 If AITSL withdraws approval of a subcontractor, the Contractor remains liable under the Agreement for the past acts or omissions of the subcontractors as if they were current subcontractors. 5.7 The Contractor must not enter into a subcontract under the Agreement with a subcontractor named by the Director of the Equal Opportunity for Women in the Workplace Agency as an employer currently not complying with the Equal Opportunity for Women in the Workplace Act The seven day notice period imposed by clause 5.5 will not apply in circumstances where the subcontractor has breached confidentiality obligations owing to AITSL or infringed AITSL Intellectual Property rights. 6 Liability, indemnity and insurance 6.1 The Contractor indemnifies and will keep indemnified AITSL from and against all Actions in any manner based upon, occasioned by or attributable to any injury to any person (including death) or loss of or damage to property (including Intellectual Property) which may arise or be a consequence of: (c) any breach of any Agreement by the Contractor any unlawful or negligent act or omission of the Contractor in connection with the provision of Services under the Agreement or any infringement of any third party s Intellectual Property as a result of the use of any Contract Material, Deliverable (or any other Material provided by the Contractor to AISL pursuant to any Agreement) by AITSL or by any person licensed or authorised by AITSL to use such material. 6.2 The Contractor will obtain, be responsible for any costs, and keep in force all necessary and adequate insurances to cover the indemnity under clause 6.1 and for public liability and professional indemnity, and will produce such certificates of currency at the signing of the Agreement and thereafter upon demand (including, without limitation, each of the insurances referred to in Item 14 of any Quote). 7 AITSL Material 7.1 Ownership of all AITSL Material remains vested at all times in AITSL. 7.2 AITSL will provide as necessary the AITSL Material to the Contractor as specified in Item 9 of the Quote. 7.3 AITSL grants to the Contractor a royalty-free, non-exclusive licence to use, reproduce and adapt AITSL Material solely for the purposes of the Agreement and the performance of the Services. 7.4 The Contractor will ensure that AITSL Material is used strictly in accordance with any conditions or restrictions set out in Item 9 of the Quote and any direction of AITSL. AITSL: RFT: 11/05-03: Sample General Terms 17

39 8 Contract material 8.1 Ownership of all Contract Material will vest in AITSL upon its creation. 8.2 The Contractor will do all things necessary or desirable (including executing all documents) to give effect to the vesting of Intellectual Property rights in the Contract Material in AITSL (including where necessary as an assignment of future copyright in such material). 8.3 The Contractor must perform the Services so as to: achieve the Milestones by the date for achieving the Milestone as set out in Item 3 of the Quote provide the Deliverables to AITSL by the date of the provision of the Deliverables as set out in Item 4 of the Quote. 8.4 The Contractor warrants that the use by AITSL of Contract Material (or any person licensed or authorised to use such material by AITSL) will not infringe the Intellectual Property rights of another, including copyright of any person. 8.5 The Contractor warrants that: (c) (d) the Contract Material does not contain any material that is libellous or defamatory and that the publication the publication of Contract Material by the Contractor, AITSL or any person licensed or authorised by AITSL to do so will not be in breach of any law and that such publication will not constitute an unlawful act under any law the publication of Contract Material by the Contractor, AITSL or any person licensed or authorised by AITSL to do so will not constitute or give rise to any improper invasion on the privacy of another person AITSL grants to the Contractor a royalty-free, non-exclusive licence (including a right to sub-licence to an approved Subcontractor) to use, publish, reproduce, modify, integrate, develop and adapt the Contract Material solely to perform the Services. 9 Contractor background property rights 9.1 The ownership of Contractor Background Intellectual Property remains vested, at all times, in the Contractor. 9.2 The Contractor grants AITSL a royalty-free, perpetual, irrevocable, non-exclusive, worldwide licence (including a right to sub-license) (the Licence ) to use, publish, reproduce, modify, integrate, develop and adapt, and to do any other acts, things or purposes in relation to Contractor Background Intellectual Property as in AITSL s absolute discretion may be necessary or desirable for the purpose of using or otherwise exploiting Contract Material. 9.3 The Contractor warrants that it owns or has the necessary licences (to use and sublicence to AITSL (which ATSIL in turn may sub licence to third parties) all Contractor Background Intellectual Property. AITSL: RFT: 11/05-03: Sample General Terms 18

40 9.4 The Contractor warrants that the use and other exploitation of Contractor Background Intellectual Property by AITSL (or any person licensed or authorised by AITSL to do so) in accordance with the rights granted under any Agreement will not infringe the Intellectual Property rights of another, including copyright of any person. 9.4 The Contractor warrants that the details of all Contractor Background Intellectual Property, existing as at the date of an Agreement is set out in Item 10 of the Quote. 9.5 The Contractor agrees that it will provide prior written notice to AITSL of any Contractor Background Intellectual Property created after the date of an Agreement which it proposes to use in relation to the provision of services under the Agreement and will not use such Contractor Background Intellectual Property without AITSL s written agreement to do so. 9.6 The licence given under clause 9.2 will survive termination or expiry of an Agreement. 10. Third party property rights 10.1 The ownership of Third Party Intellectual Property remains vested, at all times, in the third party which would be the owner of such Intellectual Property Rights were it not for the existence of any Agreement The Contractor will procure that the owner of any Third Party Intellectual Property grants to AITSL a royalty-free, perpetual, irrevocable, non-exclusive, world-wide licence (including a right to sub-license) (the Third Party Licence ) to use, publish, reproduce, modify, integrate, develop and adapt, and to do any other acts, things or purposes in relation to the use of Third Party Intellectual Property as in AITSL s absolute discretion may be necessary or desirable for the purpose of using or other exploiting Contract Material The Contractor warrants that the use and other exploitation of Third Party Intellectual Property by AITSL (or any person licensed or authorised by AITSL to do so) in accordance with the rights granted under any Agreement will not infringe the Intellectual Property rights of another, including copyright of any person The Contractor warrants that the details of all Third Party Intellectual Property existing as at the date of an Agreement are set out in Item 11 of the Quote The Contractor agrees that it will provide prior written notice to AITSL of any Third Party Intellectual Property created after the date of an Agreement which it proposes to use in relation to the provision of services under the Agreement and will not use such Contractor Background Intellectual Property without AITSL s written agreement to do so The licence given under clause 10.2 will survive termination or expiry of an Agreement. 11 Acknowledgment and publicity 11.1 In all publicity, promotion and publications relating to the Services, the Contractor will consult with AITSL before publishing or promoting the Services and will not publicise or promote such Services without having obtained AITSL s written consent If such consent is provided, the Contractor will in any publicity or promotional material and publications relating to the Services acknowledge the role of AITSL. AITSL: RFT: 11/05-03: Sample General Terms 19

41 11.3 The following text should be used for this purpose: This [description of the Services] was funded by the Australian Institute for Teaching and School Leadership Limited (AITSL) with funding provided by the Australian Government. The views expressed herein are those of [insert name of Contractor] and other contributors This clause 11 will survive the expiration or termination of an Agreement. 12 Access AITSL Access 12.1 Whenever work under an Agreement is being performed and otherwise at all reasonable times, the Contractor will permit the Liaison Officer or delegate access to its premises, and access to any of its records or accounts in connection with performance of work under the Agreement by the Contractor The Contractor will ensure that in any subcontract, that AITSL is granted similar access to the subcontractors premises, records and accounts in connection with the provision of the Services as are granted pursuant to clause 12.1 in relation to the Contractors premises and records. Contractor access to AITSL s premises 12.2 AITSL will, during the period of an Agreement, provide access to AITSL s premises for persons approved under this clause as necessary for the Contractor s performance of its obligations under the Agreement The Liaison Officer may by notice to the Contractor withdraw access rights to any AITSL premises at any time for any period The Contractor must, when using AITSL s premises or facilities for the purposes of the Services, comply with all reasonable directions and procedures relating to premises or facilities including occupational health, safety and security in effect at those premises or in regard to those facilities and whether specifically drawn to the attention of the Contractor or as might reasonably be inferred from the circumstances. 13 Compliance with laws and policies 13.1 The Contractor agrees, in carrying out the Services to comply with: (c) all relevant Commonwealth, State or Territory laws (which knowledge or understanding is the responsibility of the Contractor to obtain or be advised on) as amended from time to time any other regulations, rules, orders and policies (which knowledge or understanding is the responsibility of the Contractor to obtain or be advised on) any other reasonable direction given by AITSL from time to time. AITSL: RFT: 11/05-03: Sample General Terms 20

42 13.2 The Contractor acknowledges that it fully understands that responsibility for knowledge, understanding and compliance with clause 13.1 and is an obligation on the Contractor and AITSL is under no obligation or has no liability for providing the Contractor with that knowledge and understanding. 14 Confidentiality 14.1 The Contractor will not, without the prior written approval of AITSL, disclose to any person or third party other than AITSL, any Confidential Information relating to AITSL, the Services or the Contract Material. In giving written approval AITSL may impose such terms and conditions, as it thinks fit AITSL will not, without the prior written approval of the Contractor, disclose to any person or third party other than the Contractor, any Confidential Information relating to the Contractor. In giving written approval the Contractor may impose such terms and conditions, as it thinks fit The obligations under this clause 14 will survive the termination or expiry of the Agreement. 15 Protection of personal information 15.1 The Contractor agrees to: (c) (d) (e) (f) (g) use Personal Information held or controlled by it in connection with the Agreement only for the purposes of fulfilling its obligations under the Agreement take all reasonable measures to ensure that Personal Information in its possession or control in connection with the Agreement is protected against loss and unauthorised access, use, modification or disclosure comply with the Privacy Principles in the Privacy Act 1988 (Cth) (the Act ) or any other State privacy legislation to the extent that the content of the Act or privacy legislation apply to the types of activities the Contractor is undertaking under the Agreement co-operate with any reasonable demands or inquiries made by AITSL on the basis of the exercise of the functions of the Privacy Commissioner under the Privacy Act 1988 (Cth) or privacy legislation including, but not limited to, a request from AITSL to comply with a guideline concerning the handling of Personal Information ensure that any person who has an access level which would enable that person to obtain access to any Personal Information is made aware of, and undertakes in writing, to observe the Privacy Principles and other obligations referred to in this clause 14 comply with any policy guidelines laid down by AITSL or issued by a Privacy Commissioner from time to time relating to the handling of Personal Information comply with any direction of AITSL to observe any recommendation of a Privacy Commissioner relating to any acts or practices of the Contractor that a Privacy Commissioner considers breaches the obligations in this clause 13. AITSL: RFT: 11/05-03: Sample General Terms 21

43 15.2 The Contractor acknowledges that its obligations under this clause 14 are in addition to, and do not restrict, any obligations it may have under any privacy legislation as amended from time to time. 16 Negation of employment, partnership and agency 16.1 The Contractor will not represent itself as being an officer, employee, partner or agent of AITSL, or as otherwise able to bind or represent AITSL The Contractor is not by virtue of any Agreement an officer, employee, partner or agent of AITSL nor does the Contractor have any power or authority to bind or represent AITSL. 17 Governing law The Agreement is governed by and is to be construed in accordance with the laws applicable in Victoria. 18 Liaison The Contractor will liaise with and report to the Liaison Officer or their delegate as reasonably required by AITSL during the period of the Agreement. 19 Dispute resolution 19.1 Before resorting to external dispute resolution mechanisms or starting court proceedings, the Parties will attempt to settle by negotiation any dispute in relation to an Agreement including by referring the matter to personnel who may have authority to intervene and direct some form of resolution If a dispute is not settled by the Parties within 10 working days of one Party first sending to the other Party written notice that they are in dispute, the dispute may be the subject of court proceedings or may be submitted to some alternative dispute resolution mechanism as may be agreed in writing between the Parties. 20 Reporting The Contractor must provide the reports and Material referred to in Item 6 of a Quote, within the time period provided for the provision of such other Material or reports in Item 6 of a Quote. 21 Entire agreement and variation 21.1 The Agreement constitutes the entire agreement between the Parties and supersedes all communications, negotiations, arrangements and agreements, whether oral or written, between the Parties with respect to the subject matter of the Agreement. AITSL: RFT: 11/05-03: Sample General Terms 22

44 21.2 No agreement or understanding varying or extending any Agreement, including in particular any Quote, will be legally binding upon either Party unless such agreement or understanding is in writing and signed by both Parties. 22 Notices 22.1 A notice, demand, consent, approval or communication under an Agreement will be: in writing, in English and signed by a person duly authorised by the sender hand delivered or sent by prepaid post or facsimile to the recipient s address for Notices specified in Item 16 of a Quote or as varied by any Notice given by the recipient to the sender A notice given in accordance with clause 22.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received: (c) if hand delivered, on delivery if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia) if sent by facsimile, when the sender s facsimile system generates a message confirming successful transmission of the entire Notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice. AITSL: RFT: 11/05-03: Sample General Terms 23

45 SCHEDULE QUOTE Item 1: Contractor [insert] Item 2: Services [insert] Item 3: Milestone No Description Due Date [insert] [insert] [insert] [insert] [insert] [insert] [insert] [insert] [insert] Item 4: Deliverables No Description Delivery Date [insert] [insert] [insert] [insert] [insert] [insert] [insert] [insert] [insert] Item 5: Specified Personnel [insert] Item 6: Reports No Description Due Date [insert] [insert] [insert] [insert] [insert] [insert] [insert] [insert] [insert] Item 7: Fees [insert] Item 8: Payment arrangements [insert] Item 9: AITSL Material AITSL Material to be provided [insert] Restriction on the use of AITSL Material AITSL: RFT: 11/05-03: Sample General Terms 24

46 Item 10: Contractor Background Intellectual Property [insert] Item 11: Third Party Intellectual Property [insert] Item 12: Confidential Information In the case of: AITSL: [insert] the Contractor: [insert] Item 13: Liaison Officer [insert] Item 14: Insurances [insert] Item 15: Subcontractors [insert] Item 16: Notices AITSL: RFT: 11/05-03: Sample General Terms 25

47 In the case of: AITSL Name Australian Institute for Teaching and School Leadership Limited ABN (ABN ) Notice details [insert] [insert] Attention : [insert] the Contractor Name ABN Notice details [insert] [insert] [insert] [insert] Attention: [insert] This Quote incorporates the general terms set out in the annexure to the Deed between AITSL and the Contractor dated [insert date] (the General Terms ) as if the General Terms were set out in full in this Quote SIGNED for and on behalf of Australian Institute for Teaching and School Leadership by: ) ) ). its duly authorised officer (print name) ) Signature ) ) in the presence of: ) ) ) ) Signature of witness ) ) ) ) Name of witness ) ) ) ) Address of Witness Date AITSL: RFT: 11/05-03: Sample General Terms 26

48 SIGNED for and on behalf of [Name of Contractor] by: ) ) ). ). its duly authorised officer (print name) ) Signature ) ) in the presence of: ) ) ). ) Signature of witness ) ). ) Name of witness ) ) ). ) Address of Witness Date AITSL: RFT: 11/05-03: Sample General Terms 27

49 ATTACHMENT 5 - Compliance Checklist Section A Noted Section B Clause Com Noted Compliant Non-compliant/partially compliant Explanation included

50 Clause Com Noted Compliant Non-compliant/partially compliant Explanation included

51 Section C Clause Noted Compliant Non-compliant/partially compliant Explanation included

52 Clause Noted Compliant Non-compliant/partially compliant Explanation included ATTACHMENT 1 Category Selection Completed ATTACHMENT 2 Response Forms Profile of Respondent Subcontracts Completed Completed ATTACHMENT 3 Declaration by Respondent Completed ATTACHMENT 4 Deed of Standing Offer Noted ATTACHMENT 5 Compliance Checklist Completed