Master Agreement

Introduction and scope

This agreement covers all your interactions in the Digital Marketplace, including selling to buyers. This agreement also forms part of the terms incorporated into every work order contract agreed to by you and a buyer.

Before you can join the Digital Marketplace as a registered seller and join the Digital Marketplace Panel as an approved seller, a person authorised to enter arrangements on behalf of your organisation must accept this agreement.

This agreement will be updated from time to time to reflect the evolution of the Digital Marketplace. If you choose not to accept an update you will lose seller status. Existing work orders awarded to you will remain in force until completed or terminated according to the terms of the work order.

The drafting principles we have used are:

Terms

1. General

This agreement is between you and the DTA.

This agreement begins on the commencement date and continues until terminated by either party.

We may invite other sellers to join and do business on the Digital Marketplace at any time.

We may add, remove or update areas of expertise at any time.

We may publish information relating to this agreement and work orders in line with the Open Contracting Data Standard (http://standard.open-contracting.org/latest/en/).

You agree that the inclusion of your details on the Digital Marketplace under this agreement is of value to you and sufficient consideration for this agreement to be binding.

You must not represent that you are an employee, partner, officer or agent of the DTA or a buyer.

2. Work orders

A work order is not effective until accepted by both the buyer and the seller.

Once effective, work orders create a separate contract on the terms of this agreement and any terms specified in the work order.

If a buyer considers that a work order requires a more comprehensive approach, the buyer may choose to incorporate the suite of terms. The Comprehensive Terms will apply in addition to this agreement and the work order. 

Nothing in the Comprehensive Terms or a work order between you and a buyer can override the terms of this agreement between you and the DTA. 

3. Priority of documents

There will be times when the nature of an opportunity means that you or the buyer need to add additional terms to your agreement. A buyer may highlight additional terms in their posted opportunity or subsequently. You and the buyer must agree on any additional terms and include them in the work order. If there is any inconsistency in the documents forming a work order between you and a buyer, those documents will be interpreted in the following order of priority:

  1. Additional terms to this agreement included in the work order.
  2. This Master Agreement.
  3. The Comprehensive Terms (if applicable)
  4. The other details contained in the work order.
  5. Any attachments to the work order.
  6. Any other document referred to in the work order.

4. Adding services and products

You may offer additional services or products for possible inclusion in the Digital Marketplace at any time by following the process in the Digital Marketplace.

5. Non-exclusive arrangement

This agreement is not exclusive and does not guarantee that you will receive opportunities or work orders and does not prevent buyers from buying services or products elsewhere.

6. Seller obligations

You must supply the deliverables specified in a work order:

You must advise the buyer immediately if you become non-compliant with any of these requirements.

You must ensure:

If you do not do these things DTA may terminate this agreement and a buyer may terminate any affected work order without liability to us or the buyer.

7. Licences, warranties and documentation

You must transfer to the buyer all licences and warranties for any deliverables and any documentation needed by the buyer to fully use the deliverables.

Unless otherwise set out in the work order, documentation must at all times:

8. Intellectual property rights

General

You must ensure that the buyer's use of the order material will not infringe the intellectual property rights of any person.

You must obtain any moral rights consents in writing necessary for the buyer to use the order material.

If someone claims intellectual property rights over any material, you must, at your cost, either:

Software and standard form documentation relating to software

Unless otherwise agreed in a work order:

Other order material 

Intellectual property rights in any other order material hereby vest in the buyer from the date they come into existence. In this context, “hereby” is a legal term meaning at this time, to the greatest extent possible, but without creating any additional documentation.

Licence to material other than order material

You must ensure the buyer is provided with any intellectual property rights licence or usage rights it needs to use any material provided with (or needed for the use of) the order material.

Unless otherwise agreed in the work order, no other software terms (including your standard software licensing terms) apply to the work order.

Licence to order material owned by the buyer

To the extent that you need to use any of the order material owned by the buyer for the purpose of performing your obligations under the work order, subject to any conditions or restrictions specified in the work order and any direction given by the buyer, the buyer grants you a world-wide, royalty-free, non-exclusive, non-transferable licence (including the right to sublicense) to use, reproduce, adapt, modify and communicate the relevant order material solely for the purpose of providing the deliverables.

On the expiry or termination of the work order (or any earlier date specified by the buyer), you must deliver all order material to the buyer's representative.

9. Delivery, assessment and acceptance

You must provide the deliverables by the milestone due date specified in the work order for the relevant deliverable, or otherwise in accordance with the work order or as agreed in writing by the buyer.

If you are unable to provide all or part of the deliverables specified in a work order by the due dates for delivery in the work order (or, if the work order does not specify a date for delivery, in a reasonable timeframe), you must notify the buyer immediately.

Unless the deliverables or documentation are subject to acceptance, delivery of a deliverable will be deemed to occur when the buyer confirms receipt of, or access to, the deliverable.

Each element of the deliverables is subject to assessment by the buyer. The buyer will assess all deliverables according to the requirements in a work order.

If, following assessment, any part of the services or products still do not meet the requirements set out in the work order, the buyer may (in addition to its other remedies) terminate the work order immediately under clause 22 of this agreement (Termination and suspension). 

If the work order indicates that a deliverable is subject to acceptance, then, within a reasonable time after receipt of the deliverable, the buyer will assess the deliverable against the acceptance criteria in the work order (if any) and either:

If any of the deliverables are rejected by the buyer, the buyer will, within 5 business days of delivery, notify the seller of the reasons for rejection, the action required to be taken by the seller to remedy the deliverable and the time-frame for resubmission.  Upon receipt of this notice, the seller must remedy and re-submit the deliverable in accordance with any feedback and within the time-frame notified by the buyer (or such other timeframe as agreed by the parties). You must comply with any additional requirements related to the acceptance process specified in the work order. Where documentation is subject to acceptance, you must deliver the documentation sufficiently in advance of the date for acceptance so that the buyer has time to review it and you have time to rectify any issues prior to the date for acceptance.

For deliverables that are subject to acceptance, ownership and risk transfers on acceptance of the deliverable. For all other deliverables, ownership and risk transfers on delivery. 

10. Specified personnel, security and safety

Where a work order specifies named personnel, you must only use the named personnel and not replace, reduce or supplement them without prior written approval from the buyer.

If you are required to obtain security clearances, you are responsible for any costs associated with doing so and any failure to obtain clearances or obtain them within any timeframe does not provide an excuse to the seller for failing to provide any deliverables on time.

You must comply with all security, health, workplace and safety and any other requirements set out in the work order or that are applicable to the work, premises or location at which the services or products are being delivered.

You must not copy, transmit or remove any data without prior written approval from the buyer.

11. Subcontracting

Except as set out in the work order, you must not subcontract any aspect of the deliverables without obtaining the buyer's prior written consent.

12. Payment and expenses

If the deliverables meet the requirements of the work order, the buyer will pay you.

Unless otherwise specified in the work order, you must provide a correctly rendered tax invoice to the buyer containing the information required by the buyer as specified in the work order. The buyer will pay you within 30 days of the buyer receiving a correct tax invoice or such other timeframe as agreed by the parties.

You must not charge the buyer for any cost not specified in the work order (for example, travel). Additional costs allowed by the work order may only be claimed if they:

If a party must reimburse or indemnify another party for a loss, the amount to be reimbursed or indemnified must be reduced by any input tax credit the other party is entitled to before applying any GST.

The buyers' preferred method of payment is by electronic funds transfer direct to your bank account.

Unless the contrary is shown, payment will be deemed to have been made on the date the buyer instructs its bank that funds are to be transferred.

You must notify the buyer of any change of your bank account no later than 10 business days before a payment by the buyer is due. The buyer will not be liable to make any additional or interim payments when details of your bank account are incorrectly notified by you or are notified after the cut-off date for that payment.

13. Interest for late payment

Buyers will pay interest for late payments in accordance with the relevant government policy. At the Commonwealth level, the Supplier Pay On-Time or Pay Interest Policy applies.

14. Taxes

You must pay all taxes, duties and government charges that are due in Australia or overseas in connection with a work order.

Unless otherwise specified in the work order, prices in a work order are exclusive of GST. On receipt of a correctly rendered tax invoice, the buyer will pay you the GST exclusive amount plus any GST that applies.

15. Buyer material

The buyer will provide to you all assistance and material as specified in the work order. You must ensure these materials are used only as the buyer specifies and in the performance of your obligations under the work order.

Subject to any conditions or restrictions specified in the work order and any direction given by the buyer, the buyer grants you a world-wide, royalty-free, non-exclusive, non-transferable licence (including the right to sublicense) to use, reproduce, adapt, modify and communicate this material solely for the purpose of providing the deliverables.

16. Confidentiality

Confidential information can only be disclosed if:

Confidential information cannot be disclosed in any other circumstances without prior consent from the owner of the confidential information.

Where specified in a work order or otherwise requested by a buyer, you must promptly arrange for your employees, agents, advisers or any other third party to give a written undertaking in the form attached to the work order or otherwise provided by the buyer relating to the use and disclosure of confidential information.

17. Privacy obligations

You agree, in providing the deliverables:

18. Conflict of interest

You confirm that, to the best of your knowledge and belief after making reasonable inquiries, you have no conflict of interest.

If an actual or potential conflict of interest arises, you must notify us, and the buyer if relevant by email, and take all steps required to manage the conflict of interest as directed by us or the buyer.

19. Audit, access and review

To support buyers in meeting their governance requirements, on request you must promptly allow authorised representatives of the DTA or a buyer (including the Auditor-General or the Australian Information Commissioner or their delegates) access to, and permit copies to be made of, all material relating to the supply of the deliverables and assist with any audits.

The DTA or a buyer may at any time undertake, or appoint an external consultancy firm (referred to in this section as a Reviewer) to undertake, a review of your performance under this agreement or a work order and provide a report to the buyer and the DTA. You must provide all assistance reasonably requested by the buyer, DTA or the Reviewer in relation to the review.  

The DTA or a buyer may, but is not required to, seek input from you on proposed appointee(s) prior to appointing the Reviewer. The Reviewer will be required by the buyer to comply with appropriate confidentiality obligations. To the extent the Reviewer conducts any activity at your premises, the Reviewer and its personnel will be required to comply with your reasonable access and security requirements.

The DTA or a buyer may, but is not required to, seek input from you with respect to the provision of the deliverables and the cooperation and assistance provided by you to, and to you by, other parties (including the buyer) in providing the deliverables.

20. Complaints

If you wish to make a complaint about a buyer or a procurement under the panel, you should attempt to resolve the complaint with the buyer first.

If you wish to make a complaint about this agreement or the Digital Marketplace Panel or you are unable to resolve a complaint with the buyer, you should email marketplace@digital.gov.au. We may either manage your complaint internally or refer your complaint to the relevant buyer to be managed within the buyer's organisation. 

21. Alternative dispute resolution

If a dispute arises:

then the following process must be followed before you can commence court proceedings:

If the dispute is not resolved after mediation, either party to the dispute may seek a remedy through the Australian Capital Territory courts.

22. Termination and suspension of Digital Marketplace

We may, at any time, by prior written notice and without any liability to us:

Circumstances in which we may remove you from the Digital Marketplace include:

Circumstances in which we may suspend you from the Digital Marketplace include:

Circumstances in which we may, at our discretion, remove or suspend you from the Digital Marketplace include:

In case of your suspension from the Digital Marketplace, or the termination of this agreement, current work orders will continue unless terminated by the buyer. 

You may terminate this agreement (but not any work orders) by email at any time by 20 business days' prior written notice to us.

23. Termination and suspension of work orders

Without limiting any other rights or remedies the buyer may have, the buyer may terminate all or part of a work order effective immediately by giving email notice to you if you are removed or suspended from the Digital Marketplace or you breach a provision of this agreement or a work order where:

Without limiting any other rights or remedies the buyer may have, the buyer may terminate all or part of a work order for any reason, by giving at least 5 business days' notice by email. Unless otherwise specified in a work order, the buyer must pay:

The buyer will not be liable for consequential loss

On receipt of the notice, you must stop work on the affected deliverables and follow any reasonable directions given by the buyer.

Without limiting any other rights or remedies the buyer may have, the buyer may terminate a work order if you are subject to an insolvency event. You must notify the buyer immediately if you are subject to an insolvency event.

24. Variation

We may vary this agreement by giving you at least 20 business days' notice by email. You may terminate this agreement by written notice to us before the date when the variation is to come into effect if you do not wish to accept the variation.

The agreement applying to a work order is the agreement in place at the time the work order came into effect.

A buyer or seller cannot vary the terms of this agreement, however the terms applying to a work order will reflect the value, risk and complexity of the deliverables being delivered and may be subject to additional terms agreed between the buyer and the seller in that work order.

Work orders can only be varied by written agreement between you and the buyer.

25. Waiver

Any waiver by a party under this agreement or work order must be given by email and is effective only for the particular circumstance for which it is granted.

26. Assignment and novation

You may not assign or novate your rights and obligations under this agreement without our prior email consent and in the case of any work order, the prior email consent of the buyer.

27. Survival

The termination or expiry of this agreement for any reason will not affect or extinguish the terms which are intended to survive termination or expiry.

The terms intended to survive termination are as follows:

28. Notices

A notice must be submitted by email and addressed to the recipient's contact person. You can change your contact person at any time by updating your seller profile on the Digital Marketplace, or for a work order, by giving email notice to the buyer.

29. Jurisdiction

This agreement and any work order is governed by the laws of the Australian Capital Territory. Any court proceedings are subject to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.

30. Definitions

31. Interpretation

In this agreement, except where the contrary intention is expressed:

 

Last updated: 31 May 2019