Conditions: Provision of IT and Related Services
Based on GITC v3
Effective Date: 01 November 2009
Issued by
Procurement Policy Unit
This page is left intentionally blank
Table of Contents
1Definitions
2How to Make a Contract – Contract Details
3Commencement Date and Period
4Priority
5Services
6Telecommunications Services
7Managed Services Including Outsourcing
8Software Development
9Hardware Maintenance
10Hardware
11Licensed Software
12Leasing and Fincing
13General Responsibilities of the Contractor and Customer
14Specific Responsibilities of Contractor
15Specific Responsibilities of Customer
16Acceptance
17Warranties - Contractor
18Warranties - Customer
19Personnel
20Non-Disclosure and Use of Information
21Intellectual Property
22Indemnity
23Problem Resolution
24Liability
25Approval, Consent or Agreement
26Communication
27General
28Termination
GITC Terms and Conditions effective 01 November 2009 – Page 1
This page is left intentionally blank
GITC Terms and Conditions effective 01 November 2009 – Page 1
Conditions of Contract
1Definitions
In these Conditions, unless the context otherwise requires:
'Acceptance' means sign off by the Customer in respect of a Service or Product.
'Contract' means the agreement between the Customer and the Contractor as set out in the Head Agreement (if any), the Contract Details, these terms and conditions, the schedules to these terms and conditions and any other document expressly incorporated as part of the Contract.
'Contract Details' means the document so headed, which contains details agreed between the Customer and the Contractor regarding specific requirements of the Customer in respect of Services and/or Products to be delivered by the Contractor.
'Contractor' means the party to the Contract stated as the Contractor in the Contract Details.
'Customer' means the party to the Contract specified as the Customer in the Contract Details and includes heirs at law of the Customer.
'Developed Software' means Software (including object code and source code) specifically created for the Customer under the Contract.
'Hardware' means hardware to be supplied by the Contractor, as specified in the Contract Details.
'Head Agreement' means an agreement (if any) between the Contractor and a contract authority relevant to the provision of Services or Products under the Contract.
'Intellectual Property Rights' includes rights, to trade marks, patents, copyright and circuit layouts rights.
'Licensed Software' means Software, to be supplied by the Contractor or a third party, in respect of which ownership does not pass the Customer and in respect of which the Customer's rights of use are subject to stated conditions.
'Personnel' includes agents and subcontractors of either party.
‘Product' includes Software, Hardware, telecommunications equipment, plans and any supporting documentation to be supplied by the Contractor or a third party, as stated in the Contract Details.
'Service' means a service to be supplied by the Contractor, as stated in the Contract Details.
'Software' means software to be supplied by the Contractor, as stated in the Contract Details.
'Specifications' means specifications of functional, operational, performance or other characteristics required of a Product or Service.
Tenders shall be in the form required by the Clause titled “Documents to be Lodged with Tender Form”. Tenders shall be enclosed in a sealed envelope marked with the Tender Number and closing date. Oral Tenders or Tenders submitted by electronic mail (other than via Quotations and Tenders Online eLodgement Service) shall not be considered.
2How to Make a Contract – Contract Details
2.1An Agreement will not come into effect until the parties have agreed the Contract Details.
2.2The Customer will issue the Contract Details as agreed with the Contractor if the Customer wishes to obtain Services and/or Products.
2.3The Contract Details form part of the Contract between the Contractor and the Customer.
3Commencement Date and Period
3.1The Contract commences on the commencement date stated in the Contract Details.
3.2The Contract is in force during the period stated in the Contract Details.
4Priority
4.1In the event of inconsistency between two or more documents which form part of the Contract, they shall be interpreted in the following order of priority:
4.1.1the Head Agreement (if any);
4.1.2the Contract Details;
4.1.3these terms and conditions;
4.1.4the Specification;
4.1.5the remainder of the schedules to these terms and conditions.
4.2In the event that documents not described in clause 4.1 are incorporated into the Specification, the principal Specification as set out in the Contract Details will take priority over those documents and, to the extent of any inconsistency between those documents themselves, they will be interpreted in the following order of priority:
4.2.1the Contractor's best and final offer ;
4.2.2the Customer's request for best and final offer ;
4.2.3the Contractor's tender;
4.2.4the Customer's request for tender;
4.2.5the Contractor's expression of interest;
4.2.6the Customer's request for expressions of interest.
5Services
5.1The Contract Details will set out:
5.1.1the Service required, including any functional and performance requirements for the Service, and the times and locations at which the work must be done;
5.1.2the resources required (including any services and products to be made available by the Customer) in support of the delivery of the Service, identifying the party which is to provide them; and
5.1.3a project plan as required, setting out how and when the Contractor will supply the Service.
5.2The Customer may change the functional and performance requirements subject to providing the Contractor with the period of notice set out in the Contract Details and meeting any other agreed Contract change requirements.
5.3The Contractor will:
5.3.1manage all stages of the supply of the Service;
5.3.2take timely and corrective action where the Service is not being performed in accordance with the Specifications;
5.3.3record action taken to correct any deficiencies in the Service; and
5.3.4ensure the timely development and provision of corresponding documentation.
5.4The Service will comply with the performance measures stated in the Contract Details.
5.5The Contractor will not be liable for failing to comply with the performance measures to the extent that failure results from the Customer not performing its obligations as stated in the Contract.
6Telecommunications Services
6.1Where the Contract Details provide that the Contractor is to supply a telecommunications Service, the Contractor will provide the Service (including any Products needed to perform the Service) in accordance with the pricing stated in the Contract Details.
7Managed Services Including Outsourcing
7.1Where the Contract Details state that the Contractor is to provide a managed Service including facilities management or outsourcing, the Contractor agrees to meet the Specifications for the Service during the term of the Contact.
7.1.1The Specifications will be deemed to include, and the Contractor will be deemed to have knowledge of information that the Contractor could reasonably have obtained during the due diligence (if any) conducted prior to the date of the Contract.
7.1.2The Contractor will be deemed to have made full use of any reasonable opportunity provided by the Customer to conduct due diligence prior to the date of the Contract.
7.1.3Unless agreed to the contrary, the Contractor must ensure that technology and work practices used in providing the Service remain consistent with, and reflect, those used by the Contractor in delivering similar services to other customers.
7.2The Service will be delivered within the following management framework.
7.2.1Transition in:
(a)The Contractor will, as necessary:
(i)acquire from the Customer any Products or other resources as set out in the transition plan attached to the Contract Details;
(ii)comply with obligations set out in the Contract Details regarding the transfer of third party contracts;
(iii)comply with the requirements of the transition plan concerning the future role of the Customer’s existing Personnel, including the transfer of such Personnel to the Contractor;
(iv)ensure it is able to deliver the Service from the date stated in the transition plan;
(v)use its best endeavours to ensure that all new software licences incorporate a term requiring that the licensor will consent to novation of the licence to a new service provider or to the Customer itself upon termination of the Service;
(vi)prepare a procedures manual that describes how the Contractor will manage the delivery of the Service including:
- how the performance factors will be measured and met;
- procedures to identify and rectify failures in the quality of the Service;
- how changes to the Service or method of delivery will be identified and met;
- proposed audit requirements; and
- staffing, reporting, planning, and supervisory activities normally undertaken in respect of similar services in comparable circumstances.
(b)To the extent necessary, the Customer will use its best endeavours to facilitate the transfer of licences and other relevant third party contracts to the Contractor.
7.2.2Service Delivery and Service Level Agreement
(a)Unless the Customer agrees otherwise in writing, the Service will be performed in Australia and in accordance with the following requirements:
(i)the Contractor agrees to provide the Service in accordance with the service level agreement attached to the Contract Details;
(ii)the Contractor agrees to report to the Customer at regular intervals as to the effectiveness of service delivery, including the extent to which the Service is being adapted to meet the Customer's changing business needs;
(iii)the Contractor will advise the Customer if it considers the Specification should be revised to take account of new functions performed by the Customer that are outside the scope of the Contract;
(iv)none of the Customer’s data will be transferred outside Australia.
7.2.3If the Contractor fails to meet performance factors for the Service as set out in the service level agreement, the Contractor will:
(a)promptly investigate the underlying causes of the problem and use all commercially reasonable efforts to preserve any data indicating the cause of the problem; and
(b)advise the Customer of the status of remedial efforts being undertaken with respect to the underlying cause of the problem; but such action will not deprive the Customer of a right to pursue any other remedy under the Contract arising from the failure to meet the performance factors.
7.2.4Reversion/Transition Out
(a)On termination of the Services, the Contractor will, if requested assist the Customer in transferring responsibility for providing the service either to an alternative service provider or to the Customer itself and this will include making arrangements for:
(i)the novation or assignment of Software licenses and any other relevant third party agreements from the Contractor to the alternative service provider or to the Customer itself;
(ii)offering to sell value to the alternative service provider or the Customer itself at r market any equipment used by the Contractor in conjunction with the delivery of the Service;
(iii)the transfer of the Customer’s data to the alternative service provider or to the Customer itself; and
(iv)access to all material, regardless of the manner of storage, held by the Contractor and produced using the Service.
8Software Development
8.1Where the Customer requires the Contractor to create Developed Software (including the creation of any modifications to Licensed Software), the Contract Details will contain:
8.1.1the Specifications for the Developed Software;
8.1.2the resources required (including any services or products to be made available by the Customer); and
8.1.3an outline of the project plan for development of the Software, including a date for completion of Acceptance.
8.2Methodology
8.2.1The Contractor will fully document the development process and will:
(a)manage the development of the Developed Software;
(b)take timely corrective action where the Developed Software is not performing in accordance with the Specifications prior to Acceptance;
(c)ensure concurrent development and provision of user documentation; and
(d)ensure that the Developed Software is programmed and documented in a way which would enable future modification by a competent developer without further reference to the Contractor.
8.2.2Design Specification
(a)The Contractor will prepare a design specification and submit it to the Customer for approval by the date set out in the Contract Details. The design specification will give a detailed technical explanation of how the functions in the Specification will be met.
8.2.3Approval of Design Specification
(a)The Customer will promptly review the design specification when it is submitted by the Contractor. The Contractor will accommodate any requests for alteration made by the Customer in order to satisfy the Specification.
(b)The Customer will approve the design specification when satisfied that either it conforms to the Specification, or alternatively that any departures from the Specification are reasonable in the circumstances.
(c)The design specification will, when approved by both parties, become part of the Specifications in the Contract.
8.2.4Project Plan
(a)The Contractor will prepare a project plan by the date set out in the Contract Details. The project plan will include a detailed technical explanation of how the functions in the Specifications will be met.
8.2.5Approval of Project Plan
(a)The Customer will promptly review the project plan when it is submitted by the Contractor. The Contractor will accommodate any requests for alteration made by the Customer in order to satisfy the requirements of the Contract.
(b)The Customer will approve the project plan when satisfied that it is consistent with the requirements of the Contract.
(c)The project plan will, when approved by both parties, become part of the Specifications.
8.2.6Support Services
(a)The Contractor will provide support Services with respect to the Developed Software in the manner and for the period set out in the Contract Details.
8.2.7Source Code
(a)Where the Contract Details state the ownership of the Developed Software is to be retained by the Contractor, the Contractor agrees to enter into an escrow arrangement in the form appended to this Contract if so requested by the Customer.
(b)Where the Contract Details state the ownership of the Developed Software is to pass to the Customer, the Contractor will deliver the source code to the Customer in accordance with the project plan.
9Hardware Maintenance
9.1The Contract Details will contain a list of the Hardware to be maintained, describe the type and standard of maintenance to be provided and state the maintenance period.
9.2The Customer may vary the Contractor's Hardware maintenance obligations on giving the Contractor the period of notice set out in the Contract Details and, in the event that this increases or decreases the costs to the Contractor of providing maintenance, the parties agree to adjust the fee set out in the Contract Details.
9.3Preventative Maintenance
9.3.1The Contractor may require preventative maintenance to ensure the Hardware continues to conform to the performance requirements set out in the Specifications. This maintenance may include all the functions listed in clause 9.4.
9.4Fault Repair
9.4.1After being notified of a fault condition, the Contractor will promptly restore the Hardware to good working order and operating condition, including:
(a)replacing parts if necessary;
(b)implementing measures to minimise disruption to the Customer's operations during maintenance work as set out in the Contract Details;
(c)keeping maintenance records and making them available to the Customer within 2 days of a request; and
(d)complying with any response times and completion times set out in the Contract Details.
9.4.2The Customer will cooperate with the Contractor by providing access, storage and facilities as reasonably necessary to enable the Contractor to provide maintenance Service to the required standard.
9.5Storage
9.5.1The Customer consents to the Contractor storing manuals, tools and test equipment on site as reasonably required for the purposes of this Contract, and agrees not to use any such manuals, tools or test equipment without the Contractor's consent.
9.6Engineering Changes
9.6.1The Contractor will inform the Customer of any engineering changes of potential relevance to the Customer and shall inform the Customer whether or not it considers such changes should be implemented.
10Hardware
10.1Title and Risk of Loss
10.1.1The Contractor transfers title (except for leased items) and responsibility for each item, unit or module of Hardware to the Customer immediately upon Acceptance.
10.2Supporting Services
10.2.1The Contractor will install, integrate and support and provide training, maintenance and parts for the hardware supplied by it during the period set out in the Contract Details.
10.3Warranty
10.3.1The Contractor warrants that the Hardware will be supplied new and that it complies with the Specifications.
11Licensed Software
11.1Unless otherwise stated in the Contract Details the Contractor grants the Customer a non-exclusive, transferable licence at the fees as set out in the Contract Details to:
11.1.1copy the Licensed Software in machine readable form into a machine for processing, transmit it to a machine for processing and perform processing, and make a back-up copy;
11.1.2where the terms of the licence limit the use of the Licensed Software to a particular processor, use the Software on back-up hardware while the stated hardware is temporarily inoperable;
11.1.3assemble or compile a program on another machine if the stated processor and its associated units cannot assemble or compile the program;
11.1.4use the documentation supplied by the Contractor with the Licensed Software to support the Customer's use of the Licensed Software;
11.1.5make the number of copies of the Licensed Software set out in the Contract Details; and
11.1.6transfer the licence to another agency within the same government (Federal, State or Territory) as the Customer, on written notice to the Contractor and on that other agency consenting to the terms of the licence.
11.2Period of Licence
11.2.1Unless earlier terminated for default or otherwise stated in the Contract Details, the licence is for the period stated in the Contract Details.
11.3Protection and Security
11.3.1The Customer will:
(a)as stated in the Contract Details, maintain records of the location of the copies of the Licensed Software;
(b)not alter or remove the copyright statement on any of the copies;
(c)ensure that, prior to disposing of any media, any Licensed Software contained on it has been erased or destroyed; and
(d)where required by the Contractor in the Contract Details, ensure the confidentiality of Licensed Software.
11.4Support Services
11.4.1The Contractor will install, integrate, and support, and provide training and maintenance in respect of the Licensed Software in the manner and for the period set out in the Contract Details.