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.

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. Priority of documents

There will be times when the nature of an opportunity means that you or the buyer need to add to this 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. You cannot amend any parts of this agreement that relate to your contractual relationship with us with additional terms.

If there is any inconsistency in the documents forming a work order, those documents will be interpreted in the following order of priority:

  1. Additional terms to this agreement included in the work order.
  2. This agreement.
  3. The details contained in the work order.
  4. Any attachments to the work order.
  5. Any other document referred to in the work order.

3. 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.

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 services or products specified in a work order:

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 services or products and any documentation needed by the buyer to fully use the services or products.

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 intellectual property and licensing

Unless otherwise agreed in a work order, for order material that is software but not proprietary software:

Order material other than software

Intellectual property rights in any order material other than software and standard form documentation relating to the software supplied to the seller’s customers 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.

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.

9. Delivery

If you are unable to provide all or part of the services or products specified in a work order in a reasonable timeframe, you must notify the buyer immediately.

The buyer will accept deliverables according the requirements in a work order.

Deliverables and products become the property of the buyer on delivery subject only to them being paid for. Risk in deliverables and products transfers on acceptance of the order material.

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 perform any services or provide any products 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 services without obtaining the buyer’s prior written consent.

12. Payment and expenses

If the products or services meet the requirements of the work order, the buyer will pay you.

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.

You must not charge the buyer for any supply or expense not specified in the work order (for example, travel).

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.

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.

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.

You must, if requested, sign a non-disclosure agreement.

17. Privacy obligations

You agree, in providing the services or products:

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 and access

To support buyers in meeting their governance requirements, on request you must 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 services or products and assist with any audits.

20. Alternative dispute resolution

If a dispute arises between you and a buyer, the following process must be followed before you can commence court proceedings:

If the dispute is not resolved after mediation, you or the buyer may seek remedy through the Australian Capital Territory courts.

21. Termination and suspension

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.

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 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. The buyer will only be liable to pay for services performed or products supplied in the period before the date of termination. The buyer will not be liable for loss of profit.

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

We may terminate this agreement and a buyer may without limiting any other rights or remedies the buyer may have, terminate a work order if you are subject to an insolvency event.

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

22. 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 services or products 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.

23. 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.

24. 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.

25. 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:

26. 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.

27. 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.

Definitions

Last updated: 18 June 2018