SECTION I:CONTRACT TO BE EXECUTED
Consultancy Agreement
Australian Energy Market Operator Ltd
and
Successful Tenderer
Australian Energy Market Operator Ltd
Level 22, 530Collins Street
MELBOURNE VIC 3000
TEL: 1300 858 724
FAX: 03 9609 8778
Contents
Operative Provisions
1Interpretation
2Engagement
3Term
4Personnel
5Consultant’s responsibilities
6AEMO’s responsibilities
7Payments to Consultant
8GST
9Confidential Information
10Disclosure
11Intellectual Property
12Liability
13Insurance
14Governance
15Delay
16Dispute resolution
17Termination
18Notices
19Miscellaneous
20Governing law etc
DETAILS
Date:Parties: / Australian Energy Market Operator Limited
ABN 94 072 010 327
of Level 22, 530Collins Street, Melbourne VIC 3000
and
[Successful Tenderer]
ABN [Consultant’s ABN]
of [Consultant’s Address]
Consultant Contact: / [Consultant’s Contact]
AEMOContact: / [AEMO’s Contact]
Commencement Date: / 1 January 2016
Completion Date: / 31 December 2019
Nominated Personnel: / [Nominated Personnel]
Payment Period: / 30 days after the date of receipt of an invoice in accordance with this Agreement.
Liability Cap: / AEMO’s Liability Cap / Consultancy Fee and Agreed Expenses due under this Agreement
Consultant’s Liability Cap / $10 million
Insurance Cover: / Professional Indemnity Insurance / $ 5 million per occurrence
Public Liability Insurance / $ 10 million per occurrence
Address for Service of Notices: / To AEMO:
Level 22, 530 Collins Street, MELBOURNE VIC 3000
Facsimile: (03) 9609 8778
Attention: Company Secretary and General Counsel
cc:
Level 22, 530Collins Street, MELBOURNE VIC 3000
Facsimile: 03 9609 8778
Attention: Group Manager, Legal
To the Consultant:
[Consultant’s Address for Notices]
Facsimile: [Consultant’s Fax Number]
Attention: [Consultant’s Nominee for Notices]
Governing Law: / Victoria
Does AEMO require Undertakingsfrom the Consultant’s Representatives? / Yes
Operative Provisions
1Interpretation
Definitions
1.1Unless a contrary intention appears, these meanings apply in this document:
Agreed Expensesmeans:
(a)the Expenses; and
(b)any other expenses incurred by the Consultant in performing the Consultancy Services in accordance with this Agreement and approved by the AEMO Contact subsequent to their being incurred.
Confidential Informationmeans any information, regardless of form, concerning AEMO’s financial information, intellectual property (including know-how and trade and other secrets), discoveries, designs, computer systems, including software and source code used in AEMO's computer systems, and any information, or material derived from or incorporating any part of any of the above sources of information, any information concerning the operation of the National Electricity Market, or a Gas Market,and all information concerning the business or affairs of:
(a)AEMO (including the location and layout of AEMO’s premises);
(b)any one or more participants in the National Electricity Market or a Gas Market; and
(c)any person AEMO is in any way associated or concerned with in the course of its business,
of which the Consultant has, or will, become aware in the course ofthe Consultant’s performance of the Consultancy Services, or is developed by the Consultant inperforming the Consultancy Services, other than information that:
(d)is or becomes part of the public domain other than through a breach of this Agreement;
(e)has rightfully been received by the Consultant from a third party who is under no obligation of confidence to AEMO; or
(f)the Consultant can prove by contemporaneous documentation has been developed by the Consultant other than in connection with the Consultancy Services.
Corporations Act means the Corporations Act 2001 (Cth).
Gas Market means any market for natural gas operated and administered by AEMO under the National Gas Law, including any ‘declared wholesale gas market’.
Insolvent means, in relation to a party, that:
(a)it is, or states that it is, an insolvent under administration or insolvent (each as defined in the Corporations Act);
(b)it has had a controller (as that term is defined in the Corporations Act) appointed or is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver (as that term is defined in the Corporations Act) appointed to any part of its property;
(c)it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this agreement);
(d)an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of paragraphs (a), (b) or (c);
(e)it is taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
(f)it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or makes a statement from which it can be reasonably inferred it is so subject);
(g)it is otherwise unable to pay its debts when they fall due; or
(h)something having a substantially similar effect to paragraphs (a) to (g) happens in connection with that person under the Law of any jurisdiction.
Intellectual Property includes all patents, copyright, moral rights, registered designs, registered and unregistered trademarks, trade secrets, knowhow and confidential information and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967.
Law means Commonwealth, state, or local legislation, judicial, administrative, or regulatory decrees, judgments, awards or orders and all common laws and equity.
National Electricity Market means the wholesale exchange and power system operated and administered by AEMO under the National Electricity Law.
National Electricity Law is contained in the Schedule to the National Electricity (South Australia) Act 1996 (SA).
National Gas Law is contained in the Schedule to the National Gas (South Australia) Act 2008 (SA).
Representative means any director, officer, employee, contractor, agent and any other authorised representative of a person.
Capitalised terms not otherwise defined in this clause 1.1 are defined in the Detailsor in a Schedule.
Construction
1.2Unless a contrary intention appears in this document, a reference to:
(a)this Agreement includes any schedules and annexures;
(b)a document (including this Agreement) includes the document as novated, varied, or replaced, and despite any change in the identity of the parties;
(c)a clause, paragraph, schedule, or annexure is a reference to a clause, paragraph, schedule, or annexure to this Agreement;
(d)a clause is a reference to all its subclauses;
(e)legislation includes subordinate legislation and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them;
(f)the singular includes the plural and vice versa and a gender includes all genders;
(g)the word “person” includes a firm, a body corporate, a partnership, an unincorporated association or a governmentagency and any successor entity to those persons;
(h)the words “includes”, “including” or “such as” are not words of limitation, and when introducing an example, do not limit the meaning of the words to which the example relates to examples of a similar kind;
(i)a person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;
(j)a party includes, where the context requires it, that person’s directors, officers, employees, contractors, agents and any other persons authorised by that party;
(k)an agreement, representation or warranty:
(i)infavour of two or more persons is for the benefit of them jointly and each of them severally;
(ii)by two or more persons binds them jointly and each of them severally;
(l)a thing (including an amount) is a reference to the whole and each part of it and a reference to a group of persons is a reference to all of them collectively, to any two or more of them collectively, and to each of them individually;
(m)“dollars” or “$” means Australian dollars; and
(n)writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes facsimile transmissions.
1.3If a word or phrase is defined in this Agreement, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
1.4Headings are inserted for convenience and do not affect the interpretation of this Agreement.
1.5If, and to the extent of, any inconsistency between the Operative Provisions, schedules, or annexures to this document, the Operative Provisions will prevail over the schedules and annexures, and the schedules will prevail over the annexures.
1.6No rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it.
2Engagement
Agreement between the parties
2.1In consideration of AEMO’s paying the Consultancy Fee, the Consultant agrees to provide the Consultancy Servicesin accordance with this Agreement.
Prior Work and Consultancy Services
2.2Where the Commencement Date is before the date of this Agreement, all work provided by the Consultant to AEMO before the date of this Agreement is taken to have been provided by the Consultant under this Agreement.
Timetable & Completion Date
2.3The Consultancy Services must be performed in accordance with the Timetable, or if there is no Timetable, in a manner that ensures the Consultancy Services are completed by the Completion Date. If the Consultancy Services are likely to be delayed for any reason, the Consultant must follow the procedure set out in clause 14.
3Term
Initial Term
3.1This Agreement commences on the Commencement Date and continues until the Completion Date, unless terminated earlier in accordance with this Agreement.
Options to Extend
3.2AEMO may extend the termof this Agreement for two periods of up to 12 months each by giving the Consultant notice to that effect at least three months before the Completion Date, whereupon the Completion Date will be taken to have been amended to accord with the Completion Date referred to in the notice (New Completion Date).
3.3Within [six] months of the New Completion Date, AEMO may request the Consultant to provide AEMO with details of the Consultancy Fee the Consultant proposes to charge AEMO should AEMO extend the terms of this Agreement for a period of up to 12 months from the New Completion Date. If AEMO accepts the Consultancy Fee proposed by the Consultant, AEMO will give the Consultant notice to that effect at least three months before the New Completion Date, whereupon the Completion Date will be taken to have been amended to accord with the New Completion Date referred to in the notice,
4Personnel
Nominated Personnel
4.1The Consultant agrees that the Nominated Personnel will perform the Consultancy Services.
4.2The Consultant must not remove or replace Nominated Personnel without AEMO’s prior consent. AEMO may require the removal and prompt replacement of Nominated Personnel who are not performing the Consultancy Services to AEMO’s reasonable satisfaction. Any person who replaces Nominated Personnel must have comparable qualifications and experience and be reasonably acceptable to AEMO.
Criminal Offences
4.3If any of the Nominated Personnel are charged with having committed, or are convicted of, any criminal offence other than a traffic or parking offence in any jurisdiction, the Consultant must immediately notify the AEMO Contact and respond in accordance with any direction given by the AEMO Contact concerning the Nominated Personnel.
Protection of Confidential Information and Intellectual Property
4.4If indicated in the Contract Details, prior to commencing the performance of any obligation under this Agreement, the Consultant must procure from each person nominated in the Contract Details an undertaking in the form contained in the Attachment.
5Consultant’s responsibilities
Consultancy Services
5.1The Consultancy Services must be performed with due care and skill and all Deliverables must conform withthe requirements of this Agreement and be performed to the reasonable satisfaction of the AEMO Contact. Without limiting this requirement, the Consultancy Services must be performed at least to the standards referred to in:
(a)Standard on Assurance Engagements ASAE 3000 Assurance Engagements Other than Audits or Reviews of Historical Financial Information;
(b)Standard on Related Services ASRS 4400 Agreed-Upon Procedures Engagements to Report Actual Findings; and
(c)Standard on Assurance Engagements ASAE 3100 Compliance Engagements.
Compliance with Laws etc.
5.2The Consultant must comply with all relevant laws, rules, policies and procedures, including those related to occupational health and safety and both physical and electronic security, that are in effect at AEMO’s premises, or apply to AEMO and its facilities. AEMO will notify the Consultant of relevant policies and procedures at all times.
Australian Auditing Standards
5.3Reviews are to be conducted in accordance with Australian Auditing Standards agreed with AEMO (depending on the context), which include (without limitation):
- Standard on Assurance Engagements ASAE 3000 Assurance Engagements Other than Audits or Reviews of Historical Financial Information;
- Standard on Related Services ASRS 4400 Agreed-Upon Procedures Engagements to Report Actual Findings; and
- Standard on Assurance Engagements ASAE 3100 Compliance Engagements.
AEMO will determine, in consultation with the Consultant, the type of reviews the Consultant must undertake.
Records & Audit
5.3The Consultant must keep accurate and complete records necessary to demonstrate compliance with this Agreement and must allow AEMOand its statutory auditorsaccess to inspect and copy those records at reasonable times on reasonable notice at any time up to a period of 3 yearsafter this Agreement ends.
Conflict of interest
5.4The Consultant represents and warrants that, to the best of its knowledge, as at the date of this Agreement neither it, nor any of the Nominated Personnel has any conflicts of interest. If the Consultant subsequently becomes aware of any conflict of interest, the Consultant must bring it to the attention of the AEMO Contact as soon as practicable, and comply with any directions for managing the conflict that the AEMO Contact, acting reasonably, may make.
5.5For the purposes of clause 5.4, the Consultant’s entry into any agreement to provide services similar to the Consultancy Services with any operator of any wholesale or retail energy market in Australia not operated by AEMO will constitute a conflict of interest.
Interaction with other Consultants/Contractors
5.6The Consultant agrees that it will work cooperatively and harmoniously with AEMO and AEMO’s other contractors and consultants.
No Solicitation
5.7For the duration of this Agreement and a period of 12 months thereafter, the Consultant must not, either itself or through any other person, offer any employment or other engagement as a contractor or consultant to any AEMO employee or contractor.
Representations and Warranties
5.8The Consultant represents and warrants to AEMO as at the date of this Agreement and at all times thereafter that, in addition to any warranties that might be implied by Law:
(a)it will comply with all applicable Laws;
(b)it will not cause AEMO to be in breach of its legal obligations;
(c)it will act in good faith towards AEMO;
(d)the Consultant’s Representatives are duly qualified and skilled to provide the Consultancy Services to AEMO;
(e)it will act with due care and skill at all times in the performance of the Consultancy Services and in accordance with applicable professional standards;
(f)it has, or will acquire, any necessary technology to enable it to perform the Consultancy Services in accordance with this Agreement; and
(g)it has full corporate power and authority to enter into, perform and observe its obligations under this Agreement, and that the execution, delivery and performance of this Agreement by it has been duly and validly authorised by all necessary corporate action.
6AEMO’s responsibilities
Access to Premises etc
6.1The Consultant may request access to AEMO’s premises,systems, personnel and information that are relevant to the provision of the Consultancy Services in accordance with any relevant AEMO policies or procedures.
6.2Upon receipt of a request from the Consultant under clause 6.1 and provided the Consultant complies with any policies or procedures relating to the requested access, AEMO will make the requested premises, systems, personnel or information available to the Consultant as soon as reasonably possible unless AEMO, in its reasonable opinion, determines that the provision of such access would be:
(a)contrary to any confidentiality obligation owed by AEMO to a third party; or
(b)otherwise not in AEMO’s best interests.
7Payments to Consultant
Consultancy Fee
7.1Subject to clause 7.3, the Consultant acknowledges that the Consultancy Fee fully compensatesthe Consultant for all costs associated with the provision of the Consultancy Services, including the cost of any goods supplied with the Consultancy Services and any incidental services provided.
7.2The Consultant must not charge AEMO for any level of resourcing applied to the performance of the Consultancy Services that exceeds what a properly qualified and experienced professional would have reasonably required to perform the Consultancy Services.
Agreed Expenses
7.3Provided they are reasonable having regard to the Consultancy Services performed,AEMO shall reimburse the Consultant forthe Agreed Expenses.
Invoicing and Payment
7.4The Consultant must submit invoices in accordance with Schedule 2.
7.5Invoices forwarded by the Consultant must:
(a)include a reasonably detailed breakdown of the Consultancy Services covered by the invoice, including relevant milestones;
(b)give a breakdown for each day of the time taken by each Nominated Personnel performing the Consultancy Services covered by that invoice; and
(c)include details of any Agreed Expenses for which reimbursement is claimed.
7.6AEMOwill pay any undisputed invoice within the Payment Period. If AEMO disputes an invoice, AEMO will promptly notify the Consultant of AEMO’s reasons for the dispute and will pay the undisputed part (if any) within the Payment Period; the disputed part will then be dealt with in accordance with clause16.
Payment not evidence
7.7No payment made by AEMO to the Consultant under this Agreement is conclusive evidence that the Consultancy Services have been provided according to this Agreement unless that payment is accompanied by a certificate to that effect.
8GST
Sums Exclude GST
8.1All sums payable, or consideration under this Agreement, are exclusive of GST.
Responsibility for GST
8.2If a supply is subject to GST, the recipient must pay to the supplier an additional amount equal to the Consultancy Fee multiplied by the applicable GST rate at the same time as payment is made for the supply.
Administration
8.3Each party must provide valid tax invoices and assist the other party to claim input tax credits for GST where relevant in connection with this Agreement and to provide such other reasonable assistance to facilitate the management by each party of its GST affairs in connection with this Agreement.