ANU research SERVICES consultancy AGREEMENT
Between
The Australian National University, as represented by [insert area]
(ABN 52 234 063 906)
And
[Insert Organisation Name]
[(ABN insert)]
PLEASE NOTE: This is a template only. All text in RED needs to be updated and converted to normal font OR removed prior to this Agreement being sent to the Contractor.
This agreement is not suitable for:
- contracts with individuals / sole traders;
- contracts with subcontractors where funding is from a Commonwealth Head Funding Agt; or
- where indigenous IP is involved in relation to the services.
Consultation with the University Legal Office and University Purchasing and Contracts Office (UPCO) is recommended.
TABLE OF CONTENTS
1DEFINITIONS AND INTERPRETATION......
2PRIORITY OF DOCUMENTS......
3Services......
4Term......
5SPECIFIED PERSONNEL......
6ANU Contract Manager......
7Subcontracting......
8Review and acceptance of SERVICES (AND DeliverableS)......
9performance and delivery obligations......
10Stages......
11Variation of Agreement OR SERVICES......
12ANU Supplied Material......
13Price and Payment Plan......
14GOODS AND SERVICES TAX......
15Intellectual property and ownership of Data......
16Moral Rights......
17Confidentiality and Disclosure of Information......
18Protection of Personal Information......
19Warrany......
20Indemnity......
21Insurance......
22Audit......
23Conflict of Interest......
24business REcords......
25Freedom of Information......
26Unexpected Event......
27dispute resolution......
28Termination......
29Notices......
30General Clauses......
Schedule 1 : AGREEMENT DETAILS......
Attachment 1 : Specifications......
Attachment 2 : Implementation Plan......
Attachment 3 : Price and Payment Plan......
ANU researchservicesCONSULTANCYAGREEMENT
BETWEEN:THE AUSTRALIAN NATIONAL UNIVERSITY (ABN 52 234 063 906) an institution established under the Australian National University Act 1991 (Cth), as represented by[insert area]of Acton, Australian Capital Territory, 0200, Australia.
(ANU)
AND:[INSERT ORGANISATION NAME][insert registered address of organisation including country].
(CONTRACTOR)
Background
- The ANU has agreed to engage the Contractorto deliver theresearch Services to the ANU,on the terms and conditions set out in this Agreement, as specified in the Agreement Details.
- The Contractor has agreed to provide the University with the Services on the terms and conditions of this Agreement.
The Parties Agree
1DEFINITIONS ANDINTERPRETATION
Definitions
1.1The following definitions are incorporated into this Agreement.
(a)Accept, Acceptance or Accepted means notification from ANU that the Service including any Deliverable meets the requirements of the Agreement as may be specified in any Specification or in the Agreement Details;
(b)Agreement means this document including the Agreement Details and annexures or any document incorporated by reference or any amendment thereof agreed in writing by the Parties;
(c)Agreement Details means the details of the Agreement specified inSchedule 1and any attachments;
(d)Term means the term of the Agreement in accordance with clause4.1;
(e)ANU Data means all data and information relating to the Project or the ANU and its operations, facilities, assets and programs,including but not limited to Personal Information of any research participants, students, customers, or Personnel as defined by the Privacy Act 1988 (Cth),in whatever form that information may exist and whether collected by, entered into, stored in, generated by or processed through software, hardware or equipment by or on behalf of the ANU for accessing and making use of a Service;
(f)ANU Data Location means the overseas territory where ANU Data is to be transferred pursuant to clause18.5, if specified in the Agreement Details;
(g)ANU Supplied Material means any Material which is:
(i)anyExisting Material owned by the ANU;
(ii)any ANU Data;
as may be specified in the Agreement Detailsand which may be supplied to the Contractoror accessed by the Contractorpursuant to the Agreement; or
(iii)Material copied or derived from ANU Supplied Material so provided;
(h)Ceiling Amount means, as determined by the ANU, the maximum amount payable to the Contractor for the performance of the Services pursuant to this Agreement, where specified in the Price and Payment Plan;
(i)Commencement Date means the date on which this Agreement is signed by the Parties or if signed on separate days, on the date of the last signature unless otherwise specified in the Agreement Details;
(j)Completion Date means the date the Agreement ends, unless terminated earlier, as specified inthe Agreement Details;
(k)Confidential Information means all information disclosed pursuant to the Agreement (irrespective of the form in which it is provided to the Recipient Party). For the avoidance of doubt, all information disclosed to a Recipient Party in the performance of the Agreement is presumed to be confidential, unless otherwise agreed in writing by the Recipient Party and the Disclosing Party. Confidential Information does not include information specified in clause 17.3:
(l)Conflict of Interest or Conflict occurs when the private interest of a Party may influence or compromise the conduct of that Party in the conduct of their activities pursuant to clause 23of this Agreement. Apparent or perceived conflicts may undermine trust and be as damaging as actual conflict;
(m)Consequential Loss means any loss, damage or expense recoverable at law:
(i)other than a loss, damage or expense that would be suffered or incurred by any person in a similar situation to the person suffering or incurring the loss, damage or expense; or
(ii)which is a loss of:
(A)opportunity or goodwill;
(B)profits, anticipated savings or business; or
(C)value of any equipment,
and any costs or expenses incurred in connection with the foregoing;
(n)Corporations Act means the Corporations Act 2001 (Cth);
(o)Correctly Rendered Invoice means an invoice that is rendered in the form of a tax invoice under GST law where:
(i)the amount claimed in the invoice is due for payment and correctly calculated in Australian dollars;
(ii)the invoice is set out as an itemised account, which identifies the GST exclusive amount, the GST component and the GST inclusive amount and enables the ANU to ascertain what the invoice covers and the amount payable;
(iii)the invoice is accompanied by documentary evidence that signifies Acceptance (where appropriate) has occurred with the Agreement;
(iv)the invoice is accompanied by an Expense Claim (if any Expenses have been agreed in writing beforehand by the Parties) and (wherever reasonably requested by ANU) by verifying documentation; and
(v)the invoice is addressed to the ANU Contract Managerto receive invoices;
(p)Defect means an incomplete Service or Deliverable or a fault, error, failure, degradation, deficiency or malfunction that causes the relevant Service or Deliverable not to meet the relevant Specification(where specified) or meet their purpose and other requirements under the Agreement;
(q)Deliverable means any Service or output from any Service including any document or reportthat is required to be provided to the ANU by the Contractor under the Agreement;
(r)Deliverables Submission Date means the date the Contractor is to provide the Deliverables to the ANU, as specified in the Agreement Details;
(s)Existing Material means any Material that is developed:
(i)prior to the Commencement Date; or
(ii)independently of the Agreement; and
that may beincorporated into a Deliverable;
(t)Expenses means any agreed reimbursable expenses as specified in thePrice and Payment Plan;
(u)Expense Claim means a list of the agreed Expenses and relevant receipts for each Expense;
(v)Final Completion means, unless a date is specified in the Agreement Details, the Services will be deemed to have been completed when all of the following have occurred:
(i)all of the Serviceshave been carried out in accordance with this Agreement; and
(ii)all of the Deliverables (including Reports) have been Accepted and submitted in accordance with the Agreement;
(w)GST means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(x)Implementation Plan means the work break down structure or timetable of Service work to be performed by the Contractor as may be set out in Attachment 2;
(y)Insolvency Event in the context of a person means:
(i)a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act 2001 (Cth)), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the person;
(ii)the person or the person’s property or undertaking becomes subject to a personal insolvency arrangement under Part X Bankruptcy Act 1966 (Cth) or a debt agreement under Part IX Bankruptcy Act 1966 (Cth);
(iii)the person is or becomes unable to pay its debts when they are due or is becomes unable to pay its debts within the meaning of the Corporations Act2001 (Cth) or is presumed to be insolvent under the Corporations Act 2001 (Cth);
(iv)the person ceases to, or threatens to cease to, carry on business; or
(v)an application or order is made for the liquidator of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person otherwise than for the purpose of an amalgamation or reconstruction;
(z)Insurance means the insurance policies the Contractor is required to effect and maintain during the Termwhich may include Professional Indemnity Insurance or Public and Product Liability Insurance, pursuant to clause21, as specified in the Agreement Details;
(aa)Intellectual Propertyor IP means all copyright (including all rights in relation to phonograms and broadcasts), all rights in relation to invention (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered designs and semi-conductor and circuit layouts and know how, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields,
whether or not such rights are registered or capable of being registered, other than:
(i)the right to keep Confidential Information confidential; and
(ii)Moral Rights and the rights of performers;
(bb)Lossesor Lossmeans claims, liabilities, expenses, losses, damages and costs (including but not limited to legal costs on a solicitor - client basis, whether incurred or awarded against a party);
(cc)Material means any tangible and intangible information or property including documents or other things such as software in whatever form and in which Intellectual Property rightsmay subsist;
(dd)Moral Rights means rights of integrity or authorship, rights of attribution of authorship, rights not to have authorship falsely attributed, and rights of a similar nature conferred by statute that may exist, or may come to exist in any Deliverable or New Material;
(ee)New Material means any Material that is:
(i)newly created by or on behalf of the Contractor during the performance of the obligations under the Agreement;
(ii)incorporated into a Deliverable; and
(iii)delivered to the ANU in accordance with the requirements of the Agreement,
except for any Material that is Existing Material or any adaptation, translation or derivative of that Existing Material;
(ff)Notice means a notice, demand, consent, approval or communication in writing issued pursuant toclause 29of this Agreement as specified in the Agreement Details;
(gg)Party means either of the ANU or the Contractor and Parties means both the ANU and the Contractor;
(hh)Personal Information has the same meaning given to it in the Privacy Act 1998 (Cth) and means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(i)whether the information or opinion is true or not; and
(ii)whether the information or opinion is recorded in material form or not;
(ii)Personnel means in relation to a Party, any natural person who is a director, officer, employee, agent or professional adviser of that Party; and
(i)in the case of the Contractor, the Specified Personnel and any Subcontractor of the Contractor and Subcontractor Personnel;
(ii)in the case of the ANU, the persons identified in the Agreement Details;
(jj)Price means an itemised Price (including a rate for a unit), payable in Australian dollars by the ANU for aService and Expenses (if any) as specified in the Price and Payment Plan;
(kk)Price and Payment Plan means the document that sets out the Price and payment arrangements as agreed by the Parties as set out in Attachment 3of the Agreement Details;
(ll)Professional Indemnity Insurance means a form of Insurance that indemnifies the insured against the consequence of a breach of professional duty and particularly professional negligence;
(mm)Public and Product Liability Insurance means insurance under which the insurer agrees to indemnify the insured for legal liability owed to another person who suffers loss or damage by reason of the insured’s business activities;
(nn)Service means any item or thing to be provided or performed under the Agreement, including any Deliverable,as described in the Agreement Details;
(oo)Specification means the totality of any technical or descriptive specifications of functional, operational or performance or other characteristics required of a Deliverable or requirements for the Project provided by the Contractor being any Specifications stated in the Agreement Details;
(pp)Specified Personnel means the Contractor’s key Personnel who are required to undertake the provision of the Services or part of the work constituting the Services as set out in the Agreement Details;
(qq)Stages means one or more Milestones that are identified as a stage in the Price and Payment Plan;
(rr)Subcontractor means a third party to which the Contractor has subcontracted the performance or supply of any Services or Deliverablespursuant to this Agreement and to which the Contractor is responsible for pursuant to this Agreement;
(ss)Timesheet Submission means the timeframe specified in the Agreement Details pursuant to clause 13.13;
(tt)Unexpected Event means pursuant to clause 26, anything outside the reasonable control of a Party including, but not limited to: fire; storm; flood; earthquake; explosion; war; invasion; rebellion; sabotage; epidemic; labour dispute; labour shortage; failure or delay in transportation and act or omission (including laws, regulations, disapprovals or failures to approve) of any third person (including but not limited to, Subcontractors, customers, governments or government agencies, other than the ANU);
(uu)Working Day means, for the purposes of this Agreement, a day which is not an Australian Government gazetted public holiday, or a Saturday or Sunday, in the Australian jurisdiction in which the obligation has to be performed.
Interpretation
1.2In this Agreement, unless the contrary intention appears:
(a)a reference to this Agreement or another instrument includes any variation or replacement of either of them;
(b)words in the singular number include the plural and words in the plural number include the singular; and
(c)words importing gender include any gender.
2PRIORITY OF DOCUMENTS
2.1If there is inconsistency between any of the documents forming part of this Agreement, those documents will be interpreted in the following order of priority to the extent of any inconsistency;
(a)this Agreement;
(b)the Agreement Details; and
(c)any documents incorporated by express reference to the Agreement.
3Services
3.1The Contractor must perform the Services (including supplying the Deliverables) in accordance with the terms of this Agreement and as specified in the Agreement Details.
4Term
4.1This Agreement begins on the Commencement Date and continues until the Completion Date, unless terminated in accordance with this Agreement.
5SPECIFIED PERSONNEL
5.1The Contractor must ensure that the Services are only performed by the Specified Personnel, and must notify the ANU immediately if that person ceases (or those persons cease) to be engaged or employed by the Contractor. If the Contractor is unable to provide a suitable replacement personnel, the ANU may terminate this Agreement under clause 28(Termination).
6ANU Contract Manager
6.1The person stated in the Agreement Details as the ANU Contract Manager will be the person with responsibility for supervision of this Agreement on behalf of the ANU. The Contractor must send all communications to the ANU Contract Manager.
7Subcontracting
7.1Unless specified in the Agreement Details, the Contractor may not subcontract any part of the Services.
7.2Where the ANU agrees to allow the Contractor to subcontract, the ANU may impose any terms and conditions it considers appropriate and the Contractor remains at all times responsible for the Services and compliance with its obligations under this Agreement, notwithstanding that the Contractor has subcontracted any of the Services. Any Subcontractor will work under the control of the Contractor during the Term and the Contractor must use all reasonable efforts to ensure that the Subcontractor complies with the terms of this Agreement.
8Review and acceptance of SERVICES (AND DeliverableS)
8.1The ANU may inspect the performance and outcome of the Services at any time, and for that purpose exercise the ANU’s rights under clause 22 (Audit).
8.2A Service (including a Deliverable) is deemed Accepted on delivery to the ANU, provided that such deemed Acceptance does not prejudice ANU’s rights under this Agreement or at law with respect to rectification of any Defects in the Service or Deliverable by the Contractor. Accordingly, within ten (10) Working Days of the delivery of a Service or Deliverable, or as otherwise agreed in writing by the Parties, the ANU will review the Service and Deliverable and provide the Contractor with any queries, comments, clarifications or edits (Changes) on the Deliverable in writing.
8.3If the Contractor receives written Changes from the ANU within five (5) Working Days, the Contractor must within fourteen (14) Working Days, or as otherwise agreed in writing by the Parties, amend and/or remedy the Defect in the Services or a Deliverable for review by the ANU as appropriate without charge.
Defective Deliverable
8.4Without prejudice to its rights under this Agreement, if the Contractor fails to remedy a Defect in the Service or Deliverable within fourteen (14) Working Days the Deliverable will have failed Acceptance or if the Changes made by the Contractor fail Acceptance after one attempt at rectification under clause 8.3, the ANU may, at the ANU’s entire discretion:
(a)reject Services and Deliverables which have failed Acceptance and the ANU may:
(i)require the Contractor to remove any Deliverable which has failed Acceptance or which has been affected by the failure within ten (10) Working Days (where applicable);
(ii)require the Contractor to refund any Price applicable to that Service or Deliverable;
(iii)reduce payments to the Contractor in respect of other Services or Deliverables to an equivalent amount;
(iv)the ANU may perform the necessary work and recover the cost from the Contractor without prejudice to any other rights or remedies the ANU may have; and/or
(v)the ANU may terminate the Agreement immediately under clause 28.4 by giving the Contractor written notice.
9performance and delivery obligations
9.1During the Term the Contractor must perform its obligations and provide the Services:
(a)in accordance with the details specified in the Agreement Details;