Instructions for Using

INSTRUCTIONS FOR USING

CONTRACTOR/CONSULANT AGREEMENT (Other Entity version)

DETACH THIS PAGE PRIOR TO ISSUING THE AGREEMENT

WHEN USING CONTRACTOR/CONSULTANT AGREEMENT

·  This agreement should be used for contractors or consultants who are companies, partnerships or other entities.

·  You must indicate in Item 10 whether the fee is inclusive or exclusive of GST. The default is that the fee is inclusive of GST (if GST is payable).

·  Read the ‘Guide to using the Contractor/Consultant Agreement’ – this explains the legal significance of each field and will assist you with compliance.

Key sections of the Agreement

·  There are five main sections in the Contractor/Consultant Agreement:

a  Schedule – this is the table on page 1. It should contain information about the contractor/consultant and the specific agreement reached with them (including variable terms and conditions). You should insert the relevant information in the fields marked in yellow highlighting. Complete all highlighted sections of the Schedule. All non-mandatory fields have an option to select ‘not-applicable’.

a  Terms and Conditions – these are UNSW’s standard terms and conditions (pages 2-4). Do not amend any of the Terms and Conditions. If you wish to negotiate different Terms and Conditions, contact Legal Counsel HR or your Human Resources Consultant.

a  Confidentiality Deed Poll (Annexure A) – This is the standard deed poll which personnel working for the company may be required to sign. This is important because the agreement is between UNSW and the company, not the individuals. You should require each of the Contractor’s personnel who will perform the Services to sign a Deed Poll to protect UNSW’s confidential information and Intellectual Property.

a  Service Standards (Annexure B) – this is an optional section to be used if there are service standards. If you do not require any service standards, you should remove Annexure B.

a  Special Conditions (Annexure C) – this is an optional section to be used if there are special conditions (for example, a cancellation fee, any industry codes which should be complied with etc). Special conditions must not conflict with the general terms and conditions. If special conditions are complex or may have legal implications, you should seek advice from the Legal Counsel HR or the legal office. If there are no special conditions, you should remove Annexure C.

If you have any queries or concerns, contact Legal Counsel HR, the legal office or your Human Resources Consultant.

PRE-CONDITIONS TO USING CONTRACTOR/CONSULTANT AGREEMENT

You must complete the following steps prior to issuing this Contractor/Consultancy Agreement:

¨  Contractor has completed VN1 Form / Signed:
Print Name:
¨  Australian Business Number or Australian Company Number has been obtained
ABN/ACN: ______/ Signed:
Print Name:

Detach this page prior to issuing the Contractor/Consultant Agreement
and store it on your file.

CONTRACTOR/CONSULTANT AGREEMENT (Other entity version)

This Agreement dated ______is between:

1.  The University of New South Wales (ABN 57 195 873 179) (UNSW); and

2.  [Insert company name/partnership/other entity](ABN/ACN [insert])(Contractor),

and comprises the Schedule, the Terms and Conditions, Annexure A and Annexure B (if indicated in Item 6 of the Schedule) and Annexure C (if indicated in Item 14 of the Schedule).

SCHEDULE

AGREEMENT TERM
Item 1 (cl 2.1) / Commencement date: / [insert date]
Item 2 (cl 2.1) / Termination date: / [insert date]
Item 3 (cl 16.1) / Notice required to terminate the Agreement: / [insert notice period – normally 4 weeks]
CONTACT DETAILS
Item 4 (cl 19.3) / UNSW’s address
Contact person: [insert]
Address: [insert]
Telephone: [insert]
Email: [insert] / Contractor’s address
Contact person: [insert]
Address: [insert]
Mobile: [insert]
Email: [insert]
SERVICES TO BE PROVIDED BY THE CONTRACTOR
Item 5 (cl 3.1) / Description of Services / [Insert description of services – for example:
To deliver the course ‘Title’ in Semester 1 2008, including:
·  delivering [insert] hours of lectures and tutorials, as scheduled;
·  marking work submitted by students;
·  supervising examinations, as scheduled;
·  being available for [insert] hour each week to meet with students; and
·  responding to queries by students]
Item 6 (cl 3.1(b)) / Service standards / ¨  Not applicable / ¨  As per Annexure B
Item 7 (cl 3.1(c)) / Timetable for provision of services: / ¨ Not applicable
¨ In accordance with the following timetable:
Date:
[Insert date]
[Insert date] / Milestone:
[Insert Milestone]
[Insert Milestone] / Instalment
$[insert amount]
$[insert amount]
Item 8 (cl 6.2) / Equipment or facilities to be provided by UNSW for the Contractor’s use / ¨  Not applicable
¨  Office (including desk)
¨  Access to telephone
¨  Access to computer / ¨  Access to photocopying
¨  UNSW email address
¨  Car parking (fee applies)
¨  Other – [insert]
Item 9 (cl 4.1) / Authorised personnel to act for the Contractor / ·  [Insert person]
·  [Insert person] / ·  [Insert person]
·  [Insert person]
CONTRACTOR’S FEE
Item 10 (cl 7) / Contractor’s Fee: / $[insert] (including GST) per [insert period – fortnight, month, session]
OR [Insert schedule of fees and payments]
OR [In accordance with the timetable set out in Item 7]
Item 11 (cl 8) / Contractor’s Expenses payable by the UNSW: / ¨  Not applicable
¨  Travel / ¨  Other – [insert]
INTELLECTUAL PROPERTY
Item 12 (cl 9) / IP arising from or in connection with the Services: / ¨  UNSW will own IP
¨  Contractor will own IP / ¨  IP Arrangements as per special conditions
INSURANCE POLICIES
Item 13 (cl 11.1) / Insurance policies that Contractor must effect: / þ  Public liability insurance (at least $10 million) (mandatory)
þ  Workers compensation (mandatory)
¨  Professional indemnity insurance (required unless Business Unit waives requirement)
¨  Other – [insert]
SPECIAL CONDITIONS
Item 14 (cl 15) / Special conditions / ¨  Not applicable / ¨  As per Annexure C

- 1 -

TERMS AND CONDITIONS

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1.  DEFINITIONS AND INTERPRETATION

1.1.  In this Agreement:

(a)  Agreement Term means the term in clause 2.1, including any extension under clause 2.2.

(b)  Confidential Information means any information (whether oral, writing or electronic) relating to a party that is not publicly available (other than by breach of this Agreement) and that by its nature is confidential (including but not limited to trade secrets and know how).

(c)  Fee means the fee payable under Item 9.

(d)  GST means Goods and Services Tax.

(e)  Intellectual Property means all statutory and other proprietary rights in respect of inventions, copyright, trade marks, designs, patents, know-how, trade secrets and all other rights as defined by Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967 and all rights to apply for the same.

(f)  Personal Information has the meaning given to it in the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).

(g)  Services means the services in Item 6.

(h)  UNSW means the University of New South Wales and its officers, agents and employees.

1.2.  In this Agreement, unless the contrary appears:

(a)  The singular includes the plural and vice versa.

(b)  A reference to a person includes a body corporate or partnership and includes that person’s successors, administrators, executors and assigns.

(c)  A reference to a law includes any amendment to it or replacement of it.

1.3.  Headings are inserted for convenience only and do not affect the interpretation of this Agreement.

2.  AGREEMENT TERM

2.1.  This Agreement commences on the date specified in Item 1, and terminates on the date specified in Item 2, unless terminated earlier in accordance with clause 16 of this Agreement.

2.2.  If the Contractor, with the agreement of UNSW, continues to provide the Services after the expiry of the Agreement Term, this Agreement continues to apply.

3.  CONTRACTOR’S OBLIGATIONS

3.1.  The Contractor will perform the Services:

(a)  in a diligent and professional manner, and with the necessary skill and care required to perform the Services;

(b)  according to any standards that normally apply to the Services and any service standards set under Item 6;

(c)  before the end of the Agreement Term and according to the deadlines or milestones specified in any timetable set under Item 7.

3.2.  The Contractor is required to comply with the rules, regulations, procedures and policies of UNSW, as amended from time to time. This includes, without limitation, code of conduct, occupational health and safety, security, discrimination and harassment and privacy. UNSW rules, regulations, policies and procedures do not form part of this contract.

3.3.  The Contractor warrants that the Contractor has no conflict of interest in performing the Services as at the date of this Agreement. If the Contractor becomes aware of any actual or potential conflict of interest, the Contractor will immediately advise UNSW in writing, in which case UNSW may terminate the Agreement pursuant to clause 16.

4.  PERSONNEL

Authorised personnel

4.1.  If applicable, the Contractor will appoint the authorised personnel set out in Item 9 to perform and have responsibility for the Services.

Substitution of personnel

4.2.  The Contractor will not substitute other personnel for the authorised personnel without the written consent of UNSW.

4.3.  If UNSW reasonably considers that any of the Contractor’s personnel are not performing the Services to the standards expected of UNSW, UNSW may, by providing 14 days notice in writing, require the Contractor to substitute the Contractor’s personnel with another person acceptable to UNSW.

4.4.  If the Contractor’s personnel are unavailable or on leave, the Contractor must provide other qualified personnel approved by the UNSW to ensure the Contractor meets its obligation under this Agreement.

Status of personnel

4.5.  The Contractor’s personnel are, and remain, employees, agents or contractors of the Contractor.

4.6.  The Contractor is solely responsible for any payments, wages, taxes and insurances owing to, or in respect of, the Contractor’s personnel, as well as any other entitlements or benefits arising from their employment or engagement including (but not limited to) annual leave, sick leave, superannuation and workers’ compensation.

5.  ASSIGNMENT AND SUB-CONTRACTING

5.1.  The Contractor must not assign or sub-contract any part of the Services without the prior written consent of UNSW. Any such written consent of UNSW does not relieve the Contractor from the Contractor’s obligations under this Agreement.

5.2.  Subject to the Contractor’s obligations under this Agreement (including with respect to conflict of interest), the Contractor may provide services to third parties.

6.  EQUIPMENT

6.1.  The Contractor will provide all equipment necessary to perform the Services and is responsible at his/her cost for insuring the equipment and maintaining it in good working order during the Agreement Term.

6.2.  If Item 8 specifies that UNSW will provide equipment or facilities for use by the Contractor, then the Contractor must:

(a)  use that equipment or those facilities only for the purpose of providing the Services;

(b)  ensure that equipment and those facilities are used according to any manufacturer’s instructions and any instructions provided by UNSW; and

(c)  notify UNSW immediately if the Contractor becomes aware that the equipment or facilities are not working properly, or have become lost or stolen.

7.  CONTRACTOR’S FEE

7.1.  To the extent that any GST is payable in respect of this Agreement, including in relation to the Services, the Contractor is liable to pay that GST and indemnifies UNSW against any failure to comply with this clause.

7.2.  Where this Agreement provides that the Contractor is to be paid by progressive payments, UNSW is entitled to defer payment until the Contractor has completed that part of the Services.

7.3.  The Contractor must provide invoices to UNSW in the form of a valid tax invoice. Where the Contractor has subcontracted any part of the Services, the invoice must be accompanied by a completed pro forma principal contractor’s statement regarding workers compensation, pay-roll tax and remuneration.

7.4.  UNSW will pay the Contractor the invoiced Fee within 30 days of receipt of the tax invoice.

8.  EXPENSES

If Item 11 specifies that UNSW is to reimburse the Contractor for any expenses, then UNSW will pay those expenses provided that the expenses are approved in writing in advance by UNSW and the Contractor has provided evidence that they have or will be incurred.

9.  INTELLECTUAL PROPERTY

9.1.  If Item 12 specifies that UNSW will own the intellectual property, then the Contractor:

(a)  assigns to UNSW all Intellectual Property created by the Contractor (whether alone or with another person) arising from or in connection with the Services;

(b)  agrees that by virtue of this clause all Intellectual Property arising from or in connection with the Services is vested in UNSW;

(c)  grants UNSW consent to do or omit to do any act which would otherwise infringe the Contractor's moral rights under the Copyright Act 1968 (Cth) in relation to all works arising from or in connection with the Services;

(d)  must do all things reasonably requested by UNSW to give effect to UNSW’s rights under this clause; and

(e)  agrees that UNSW may require the Contractor’s personnel to sign a Deed Poll contained at Annexure A to this Agreement as a condition of UNSW’s acceptance of any of the Contractor’s personnel, or do any other reasonable thing that gives effect to UNSW’s rights under clauses 9.1(a),(b) and (c).

9.2.  If Item 12 specifies that the Contractor owns the Intellectual Property, then the Contractor hereby grants UNSW an irrevocable, perpetual, royalty-free, non-transferable and non-exclusive licence to use the Intellectual Property for:

(a)  purposes arising from or in connection with the Services; and

(b)  making copies for archival purposes.

9.3.  The Contractor warrants that all Intellectual Property created in connection with or arising from the Services will be original and will not infringe intellectual property of third parties, and indemnifies UNSW for any demand, cost or expenses as a result of any breaches by the Contractor of the intellectual property rights of third parties.

9.4.  The Contractor must not publish any articles, statements or any other information in connection with or arising from the Services without UNSW’s prior approval in writing.

10.  CONFIDENTIALITY AND PRIVACY