Short Form Software Licence

FORMAL INSTRUMENT OF AGREEMENT

AGREEMENT made the day of 201*

BETWEEN:

THE HONOURABLE JOHN RAU, ATTORNEY-GENERAL for and on behalf of the Crown in right of the State of South Australia of Level 11, 45 Pirie Street, Adelaide 5000 in the State of South Australia (“the Customer”) (**delete this description if not applicable)

MINISTER FOR BUSINESS SERVICES AND CONSUMERS a body corporate pursuant to the Administrative Arrangements Act 1994 (SA) of Level 11, 45 Pirie Street, Adelaide 5000 (“the Customer”) (**delete this description if not applicable)

AND:

[Name of Contractor] ([ABN of Contractor]) of [Address of Contractor] (“the Contractor”)

IT IS AGREED that this Formal Instrument of Agreement, the Agreement Details (Attachment 1); and the Terms and Conditions (Attachment 2) will together comprise the Agreement between the Parties.

Execution clause for AGD use

(**delete the execution clause that is not applicable)

SIGNED for and on behalf of )

THE HONOURABLE JOHN RAU )

ATTORNEY-GENERAL OF )

SOUTH AUSTRALIA ) ……………………………………………..

(Signature of Authorised Officer)

duly authorised in that regard )

……………………………………………..

in the presence of: ) (Print Name)

……………………………………………... (Position Title)

………………………………………………….

(Witness)

………………………………………………….

(Print Name)

SIGNED for and on behalf of )

MINISTER FOR BUSINESS SERVICES AND )

CONSUMERS ) ……………………………………………..

(Signature of Authorised Officer)

duly authorised in that regard )

……………………………………………..

in the presence of: ) (Print Name)

……………………………………………... (Position Title)

………………………………………………….

(Witness)

………………………………………………….

(Print Name)

Execution clause for use where Contractor is a body corporate (delete if not applicable)

Executed by ]«##»«##»
[ABN]
In accordance with section 127 of the
Corporations Act 2001 by two Directors or by
One Director and the Company Secretary / )
)
)
)
)
Signed:
Name:
Position: / Signed:
Name:
Position:

Execution clause for use where Contractor is a sole trader (delete if not applicable)

This Agreement is executed by )

name [ABN***] )

)

in the presence of: ) Sole trader's name

………………………………………………..

Witness

[Print Name:…….………………….………..]

Attachment 1 - Agreement Details

Item 1 / Commencement Date / [insert]
Item 2 / Expiry Date / [insert]
Item 3 / Contractor’s ABN / [insert]
Item 4 / Address for Notices / Customer: [insert]
Contractor: [insert]
Item 5 / [If Goods are being supplied]
Details of Goods (including installation if relevant) / [insert description of Goods]
Item 6 / [If Services are being supplied]
Details of Services / [insert description of Services]
Item 7 / [If Services are being supplied]
Deliverables / [insert description of Deliverables]
Item 8 / Price and Payment (including address for invoices) / [insert relevant details]
Price: $ [insert] (GST inclusive)
Manner of Payment: [e.g. instalments, payments attached to achievement of milestones]
Item 9 / [If Goods are being supplied]
Delivery Date
[If Goods or Services are being supplied]
Delivery Point / [insert date]
[insert delivery point details]
Item 10 / [If Goods are being installed]
Installation Date / [insert installation date if relevant]
Item 11 / [If Goods are being supplied]
Acceptance Date / [insert acceptance date]
Item 12 / Insurances / Public Liability Insurance $[INSERT VALUE]
Product Liability Insurance $[INSERT VALUE]
[If Services are being supplied]
Professional Indemnity Insurance $[INSERT VALUE]
Item 13 / Approved Sub-contractors / [insert relevant details]
Item 14 / Special Conditions / [insert any special conditions or ‘Not Applicable’]

Attachment 2 - Terms & Conditions

AGREED TERMS

1. DEFINITIONS

“Acceptance Date” means the date specified in Attachment 1 being the date that the Goods are deemed to be accepted by the Customer;

“Business Day” means any day that is not a Saturday or Sunday or a public holiday in South Australia;

“Confidential Information” means information which is identified either as confidential information (if disclosed by the Customer) or proprietary information (if disclosed by the Contractor), but does not include this Agreement;

“Defective Goods” means goods that fail to comply with the warranties contained in clause 7;

“Deliverables” means the reports and any data or other material specified in Attachment 1 required to be delivered throughout this Agreement;

“Delivery Date” means the date and time specified in Attachment 1 for delivery of the Goods;

“Delivery Point” means the location(s) specified in Attachment 1, where the Goods and/or Services will be delivered;

“Goods” means the goods specified in Attachment 1;

“GST” means the tax imposed by the GST Law;

“GST Law“ has the meaning attributed in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Installation Date” means the date specified in Attachment 1 for the installation of the Goods;

“Intellectual Property Rights” means all intellectual property rights, including:

(a) patents, plant breeders’ rights, copyright, rights in circuit layouts, registered designs, trademarks, know-how and any right to have Confidential Information kept confidential; and

(b) any application or right to apply for registration of any of the rights referred to in paragraph (a),

but for the avoidance of doubt excludes moral rights and performers’ rights;

“Party” means a party to this Agreement;

“Personnel” means any Approved Subcontractors, employees, agents and any other person employed or engaged by the Contractor to perform this Agreement;

“Price” means the price set out in or determined in accordance with Attachment 1; and

“Services” means the services specified in Attachment 1 and includes the Deliverables;

2. INTERPRETATION

2.1 In this Agreement (unless the context requires otherwise):

(a) a reference to any legislation includes:

(i) all legislation, regulations, proclamations, ordinances, by-laws and instruments issued under that legislation; and

(ii) any modification, consolidation, amendment, re-enactment or substitution of that legislation;

(b) a word in the singular includes the plural and a word in the plural includes the singular;

(d) a reference to two or more persons means all of them together;

(e) a reference to persons includes corporations, incorporated associations, partnerships, trustees and incorporated joint ventures;

(f) a reference to dollars is to Australian dollars;

(g) where a word or phrase is given a particular meaning, then other parts of speech or grammatical forms of that word or phrase have corresponding meanings;

(h) a reference to a party includes that party’s administrators, successors and permitted assigns;

(i) the word “or” is not exclusive; and

(j) where the day on or by which something is to be done is not a Business Day, that thing may be done on or by the next Business Day.

3. TERM

3.1 If Services are being supplied pursuant to this Agreement then the Agreement commences on the Commencement Date and expires on the Expiry Date unless terminated earlier in accordance with this Agreement.

3.2 This Agreement may be extended for a further period by mutual written agreement of the Parties.

4. SUPPLY OF GOODS

4.1 If Goods are being supplied pursuant to this Agreement then the Contractor must:

(a) supply the Goods in accordance with this Agreement;

(b) sell the Goods without encumbrance;

(d) comply with the Customer’s reasonable directions and delivery instructions;

(e) if requested by the Customer, provide the Customer with material safety data sheets with respect to the Goods delivered;

(f) provide test evidence for the Goods if required; and

(g) if indicated in Attachment 1, install the Goods on or before the Installation Date.

4.2 If the Contractor cannot comply with any of its obligations under clause 4.1, the Contractor must notify the Customer in writing immediately.

4.3 The Customer is deemed to have accepted the Goods on the Acceptance Date. Any acceptance of the Goods under this clause does not prevent the Customer making a claim in respect of Defective Goods.

4.4 The Contractor bears the risk in the Goods until the Customer has accepted the Goods. Title and risk in the Goods will pass to the Customer upon the Customer’s acceptance of the Goods.

5. PROVISION OF SERVICES

5.1 If Services are being supplied pursuant to this Agreement then the Contractor must provide the Services described in Attachment 1 in accordance with the terms and conditions of this Agreement.

6. DELIVERABLES

If, in the performance of the Services, the Contractor is to provide Deliverables then the details of the Deliverables, including any delivery dates and form and content requirements, must be complied with by the Contractor.

7. CONTRACTOR’S WARRANTIES AND REPRESENTATIONS

7.1 If Goods are being supplied pursuant to this Agreement then the Contractor warrants that the Goods:

(a) conform with any description applied and any sample provided by the Contractor;

(b) are free from defects in materials, manufacture, workmanship and installation;

(d) conform to the Contractor’s technical specifications;

(e) are new (unless otherwise specified);

(f) conform to any legally applicable standards;

(g) are of merchantable quality;

(h) are installed correctly (if the Contractor is responsible for installation); and

(i) are fit for their intended purpose.

7.2 The Contractor warrants that it has good and unencumbered title to the Goods.

7.3 The Contractor warrants that the Goods are manufactured and supplied without infringing any person’s Intellectual Property Rights.

7.4 The Contractor must ensure that the Customer receives the full benefit of any manufacturer’s warranties in respect of the Goods.

7.5 If Services are being supplied pursuant to this Agreement then the Contractor warrants that the Services will:

(a) comply with the description of the Services in Attachment 1;

(b) be provided with due care and skill;

(d) be performed by the Contractor and/or its nominated Personnel; and

(e) be supplied in the most cost effective manner consistent with the required level of quality and performance.

8. DEFECTIVE GOODS

If a Good is a Defective Good then, notwithstanding any other provision, the Customer is not liable to pay for the Good and at the Customer’s election:

8.1 the Contractor must replace the Defective Good within 14 calendar days (or such other time as is agreed); or

8.2 the Contractor must refund the Price paid for the Good;

and the Contractor is liable, as a debt due and payable, to the Customer for costs, loss and expense incurred by reason of the Good being a Defective Good.

9. CONTRACTOR PERSONNEL AND COMPLIANCE OBLIGATIONS

9.1 The Contractor, if required by the Customer, must give its consent to and procure the consent of its Personnel to the conduct of a police check or any other enquiry regarding its Personnel.

9.2 If the Customer gives the Contractor notice in writing requiring any one or more of the Contractor’s Personnel to be withdrawn from supplying the Goods or providing the Services, the Contractor must immediately comply with the notice and provide replacements acceptable to the Customer. If the Contractor fails to comply with that notice then the Customer may terminate this Agreement immediately by written notice to the Contractor.

9.3 The Contractor and its Personnel must only use the Customer’s computer systems with the specific authorisation of the Customer and only in the manner as directed by the Customer from time to time.

9.4 The Customer reserves the right to refuse entry to any of the Customer’s premises to any of the Personnel.

10. PRICE AND PAYMENT

10.1 In consideration for the supply of the Goods and/or the Services, the Customer will pay the Price.

10.2 The Price is inclusive of GST if GST is payable.

10.3 Subject to clause 11, the Price includes:

(a) all applicable taxes, duties or charges; and

(b) all costs of compliance with the Contractor’s obligations under this Agreement.

10.4 The Contractor is entitled to invoice the Customer for payment in respect of the Goods and/or Services, when the Goods have been supplied and accepted, and the Services have been supplied in accordance with this Agreement.

11. GST

11.1 The Contractor represents that:

(a) it is registered under the A New Tax System (Australian Business Number) Act 1999 (Cth), and that the ABN shown in Attachment 1 is the Contractor’s ABN; and

(b) it is registered under the GST Law.

12. INTELLECTUAL PROPERTY RIGHTS

12.1 If Services are being supplied pursuant to this Agreement, the Contractor grants to the Customer and the Crown in right of the State of South Australia, a perpetual, irrevocable, royalty free, fee free licence to use, copy, modify and adapt any Intellectual Property Rights in any Deliverables.

13. INSURANCE

13.1 The Contractor must effect and maintain the policies of insurance covering the Contractor in respect of any claim arising from or related to the supply of the Goods and/or the Services specified in Attachment 1 in the amounts specified in Attachment 1. The Contractor must effect and maintain these policies of insurance at all times during the Term and also for 3 years after the expiration or termination of this Agreement in relation to Professional Indemnity Insurance.

14. CONFIDENTIAL INFORMATION

14.1 Subject to this clause 14, neither Party may disclose any Confidential Information of the other Party except as genuinely and necessarily required for the purpose of this Agreement.

14.2 A Party may disclose Confidential Information of the other Party:

(a) to an employee agent or adviser of that Party, on a “need to know” and confidential basis;

(b) as required by law or a court order;

(d) for the purposes of prosecuting or defending proceedings.

15. REMEDIES

15.1 Any claim the Customer may have against the Contractor may be set off against monies owed to the Contractor under this Agreement.

15.2 The rights and remedies provided under the Agreement are cumulative and not exclusive of any remedies provided by law or any other right or remedy.

16. TERMINATION

16.1 The Customer may terminate this Agreement immediately upon giving notice in writing to the Contractor if:

(a) the Customer reasonably forms the opinion that the Contractor will be unable to perform its obligations pursuant to this Agreement;