Marketing services register for suppliers

Part 1 – Introduction and background

The Department of Treasury and Finance (the Department) is responsible for establishing a Marketing Services Register (the Register) for the ongoing delivery of advertising and communication services to Victorian Government departments and agencies.

The eProcurement platform is replacing the MarketingOnLine system. Suppliers of marketing services are invited to apply for a position on the Register by passing a set of mandatory prequalification criteria.

Part 2 – Scope

The Register will consist of the following services:

The Department may add, amend or replace these categories at any time in its absolute discretion. In the event that the Department adds, amends or replaces these categories, it will publish a notice on the Buying for Victoria website.

In addition, the Department may delete a category at any time in its absolute discretion. In the event that the Department deletes a category, it will issue a notice to each Prequalified Supplier in that category advising that the category has been deleted.

Part 3 – Prequalification

1. Applications for Prequalification

(a) Applicants are invited to apply for Prequalification at any time by submitting an application via the eProcurement platform.

(b) Applicants apply for Prequalification subject to these Prequalification Terms and at their own risk and expense.

(c) Without limiting any of the Department’s rights under the Prequalification Terms, Applications will be assessed on the basis of the Prequalification Requirements. Only those Applications which are complete and fully satisfy all the Prequalification Requirements will be considered by the Department for Prequalification pursuant to these Prequalification Terms.

(d) The Department or any Participating Agency may, in their absolute discretion, seek further information from an Applicant or investigate information provided by an Applicant. Without limiting the discretion of the Department or the Participating Agency (as the case may be), the Department or Participating Agency may investigate information provided by conducting reference checks, searches (such as, for example, company searches) and invite Applicants to participate in interviews. By submitting an Application, Applicants are deemed to authorise the Department and Participating Agencies to seek verification of the information supplied.

(e) The Prequalified Supplier acknowledges that the number of Prequalified Suppliers on the Register will change throughout the existence of the Register.

2. Registration for Prequalification

(a) If the Department is satisfied that an Applicant meets the Prequalification Requirements and is eligible for Prequalification, then the Department will grant Prequalification to the Applicant. Information from the Applicant’s Application will be available to Victorian Government buyers on the system.

(b) An Applicant may be Prequalified in one or more categories on the Register.

(c) Prequalification does not extend to related or subsidiary companies owned or controlled by the Applicant or Prequalified Supplier (as the case may be) and is not transferrable to any other entity .

3. Duration of Prequalification

Subject to these Prequalification Terms, including, without limitation, Part 6, a Prequalified Supplier’s Prequalification:

(i) takes effect from the time that the Department activates the Suppliers profile on the Prequalification on the Register;

(ii) remains in force until the Department cancels a Prequalification or dissolves the Register; or

(iii) requests that Prequalified Suppliers resubmit an Application in accordance with these Prequalification Terms,

as the case may be.

The Department also reserves its rights to seek confirmation from Prequalified Suppliers that they remain in compliance with these Prequalified Terms.

4. Pricing

(a) The rates Applicants submit as part of their Application are ceiling rates and will be fixed for 12 months starting from the date an Application is approved by the Department (Initial Period).

(b) Following expiration of the Initial Period, the Department and the Prequalified Supplier may enter into discussions for an adjustment (if any) of the ceiling rates.

5. Financial Capacity

The Department or a Participating Agency may at any time request, by notice in writing to a Prequalified Supplier, that the Prequalified Supplier confirm the currency of details relating to its financial capacity or provide additional details regarding its financial capacity. The Prequalified Supplier must respond in writing to such a request within the time specified by the Department or the Participating Agency in the notice. For the avoidance of doubt, the Prequalified Supplier must notify the Department and any Participating Agency that it is currently providing a service to immediately if it becomes subject to an Insolvency Event.

Part 4 – Acknowledgements

6. No assurance as to business

The Prequalified Supplier acknowledges that Prequalification does not result in:

(c) continuity of the Prequalification for the duration of the Register;

(d) an assurance any services will be acquired from the Prequalified Supplier; or

(e) a warranty or representation by the Department that any business, engagements or work of any kind or quantity will be conducted by the Prequalified Supplier as a result of a Prequalification.

7. No exclusivity

(a) Prequalified Suppliers acknowledge that Participating Agencies may seek services from any Prequalified Supplier on the Register. In addition, Prequalified Suppliers acknowledge that the fact that they may have previously been engaged by a Participating Agency does not preclude that Participating Agency from engaging other Prequalified Suppliers to perform other Services in the future.

(b) In the event that a Participating Agency determines to transition from one Prequalified Supplier to another Prequalified Supplier, the first Prequalified Supplier agrees to provide assistance to the Participating Agency and the second Prequalified Supplier to ensure seamless transition.

8. Register subject to Government Policy

The Register is subject to Government Policy, as amended from time to time. The Department may dissolve the Register by notice in writing to the Prequalified Suppliers if there is a change in Government Policy which, in the reasonable opinion of the Department, has the effect of making the continuation of the Register unviable, inappropriate or otherwise unsuitable.

9. Amendments

(a) The Department may from time to time, and in its absolute discretion, amend, add to or replace:

(i) its Prequalification Requirements;

(ii) these Prequalification Terms;

(iii) its reporting requirements;

(iv) any key performance indicators, which the Department may introduce from time to time; and

(v) any information contained in the Register.

(b) In the event that the Department makes amendments in accordance with clause 9(a) of these Prequalification Terms, the Department may, in its absolute discretion, require Prequalified Suppliers to resubmit Applications. Failure by a Prequalified Supplier to resubmit an Application upon request in accordance with this clause 9(b), will result in suspension of that Prequalified Supplier’s registration on the Register.

(c) The Department will not be liable for any costs or damages incurred by an Applicant or a Prequalified Supplier in the exercise of the Department’s discretion.

Part 5 – Performance

10. Monitoring Performance

(a) The Department will nominate a Category Manager to manage the operation of the Register. The Department will publish the contact details of that Category Manager on the Buying for Victoria website from time to time.

(b) The Prequalified Supplier must nominate a representative (Account Manager) who must make him or herself available during business hours to meet with the Category Manager and/or a representative of a Participating Agency as required to discuss any queries, concerns, issues or disputes arising under or in connection with the Register.

(c) A Participating Agency may submit a performance report (written or verbal) to the Category Manager where the Participating Agency considers Prequalified Supplier’s performance to be unsatisfactory ( Performance Report). The Performance Report may relate to, without limitation, a Prequalified Supplier’s performance of Services pursuant to an Agreement or other dealing under the Register.

(d) Upon receipt of a Performance Report, the Category Manager may arrange a meeting between representatives of the Prequalified Supplier and the Participating Agency to discuss and consider the performance report.

11. Collection of information relating to Prequalified Suppliers

(a) Prequalified Suppliers acknowledge that the Department may collect information from Participating Agencies relating to the performance of Prequalified Suppliers. This information will include, but not be limited to:

(i) quality of Services performed;

(ii) timeliness in performance of Services;

(iii) responsiveness (including, for example, promptness in responding to Requests for Quote);

(iv) customer service; and

(v) accuracy of invoices

together (General Performance Information).

Part 6 – Prequalification

12. Review of Prequalification

The Department reserves the right to review any Prequalification at any time. A review may be initiated by the Department or at the request of a Participating Agency. The Prequalified Supplier must provide any details required for the review upon request. Failure to comply with any request by the Department for such information may result in suspension of Prequalification.

13. Suspension of Prequalification

(a) The Department may, in its absolute discretion, suspend a Prequalified Supplier’s Prequalification, by notice in writing to the Prequalified Supplier, (in respect of one or more categories or in respect of the Register) for unsatisfactory performance or behaviour which may be, but is not required to be, described in a performance report, (the dissatisfaction). The Department may, in its absolute discretion, set out actions that the Prequalified Supplier must take to remove or resolve the cause of the suspension.

(b) A Prequalified Supplier that has been suspended must inform the Category Manager if and when the actions required by the Department to lift the suspension have been undertaken. At such time, the suspended Prequalified Supplier may apply for reinstatement of its Prequalification status.

(c) The Department may lift the suspension and restore the Prequalification if the action taken by the suspended Prequalified Supplier to address the reasons for suspension is considered by the Department to be appropriate.

14. Cancellation of Prequalification

(a) The Department may cancel a Prequalification and remove the Prequalified Supplier from the Register in the following circumstances:

(i) breach of a Prequalification Term (including, without limitation, breach of any warranty given pursuant to the Prequalification Terms);

(ii) failure to maintain appropriate insurances and licences;

(iii) failure to meet financial requirements;

(iv) failure by the Prequalified Supplier to promptly and adequately resolve the reasons for a temporary suspension from the Register;

(v) failure to maintain appropriate administration systems and processes (including reporting, invoicing and work administration);

(vi) being or having been the subject of substantiated reports of unsatisfactory performance;

(vii) adverse changes in capacity or capability or business structure or status of the Prequalified Supplier;

(viii) where the Prequalified Supplier commits any act or does anything that is contrary to prevailing community standards, or is otherwise regarded by the public as unacceptable or which brings the reputation of the Prequalified Supplier into disrepute and as a consequence the Department believes that its continued association with the Prequalified Supplier will be prejudicial or otherwise detrimental to the reputation of the State;

(ix) fraud, dishonesty or any other serious misconduct by the Prequalified Supplier or any of its employees, agents or sub-contractors; or

(x) within 30 days of the Department receiving a written notice from a Prequalified Supplier requiring or requesting the Department to cancel its Prequalification.

(b) The cancellation of a Prequalification is affected by written notice given to the Prequalified Supplier by the Department.

(c) A Prequalified Supplier whose Prequalification was cancelled must not become or seek to become a Prequalified Supplier for a period of one year from the date of cancellation. A Prequalified Supplier whose Prequalification was cancelled under clause 14(a)(viii) or clause 14 (a)(ix) is disqualified from obtaining or applying for Prequalification.

15. Right of review

(a) An Applicant or Prequalified Supplier (as the case may be) may seek a review of the Department’s decision to:

(i) refuse to accept an Application for Prequalification;

(ii) suspend the Prequalification status of a Prequalified Supplier; or

(iii) cancel the Prequalification status of a Prequalified Supplier.

(b) A request for review of a decision must be submitted to the Department within 10 Business Days of the Department’s notification of the decision and must provide full details of the reasons for the request for review. Requests should be submitted in writing to:

The Executive Director, Strategic Sourcing
Department of Treasury & Finance
Level 6, 1 Macarthur Street, Melbourne, Victoria 3002

(c) The Department must, as soon as practicable after receipt of the request, determine the request and make such decision as it thinks appropriate. The Department’s decision will be final and binding on the Applicant or Prequalified Supplier (as the case may be). The Department:

(i) will notify the Applicant or Prequalified Suppler (as the case may be) of the decision by notice in writing;

(ii) is not required to provide reasons for its decision; and

(iii) will not be liable for any costs or damages incurred in the exercise of any discretion or the making of any decision.

Part 7 – Acceptance of conditions and contract terms

16. Conditions of engagement

(a) Prequalification entitles a Prequalified Supplier to perform services only within its category or categories of Prequalification.

(b) For the avoidance of doubt, the Prequalified Supplier must comply with any Agreement between it and a Participating Agency (including, without limitation, the Standard Marketing Services Terms) in the event that the parties sign a Purchase Order following the exchange of a Request for Quote and Supplier’s Proposal.

(c) A Participating Agency may request that a Prequalified Supplier provide referees. If the Participating Agency makes such a request, the Prequalified Supplier agrees:

(i) to provide details of its referees to a Participating Agency as soon as possible after the request;

(ii) that the Participating Agency may contact the referees and discuss the Prequalified Supplier’s capability, expertise and performance in relation to services performed by the Prequalified Supplier for the relevant referee.

(d) A Participating Agency may request that the Prequalified Supplier provide evidence that it has sufficient experience to deliver the Services described in the Request for Quote.

Part 8 – Miscellaneous

17. Warranties

The Applicant’s or Prequalified Supplier’s representative (as the case may be) warrants to the Department and each Participating Agency that:

(a) they are authorised to submit the Application on behalf of the Applicant;

(b) the Applicant is not the subject of an Insolvency Event;

(c) the Applicant is not subject to legal proceedings;

(d) the Applicant’s representative and the Applicant have read the Privacy Statement, accept the terms and provide the warranties set out in the Privacy Statement; and

(e) any representations and warranties made or given by the Applicant in connection with the Application or subsequently, were and remain accurate throughout the term of the Prequalification.

18. Change of circumstances

A Prequalified Supplier must immediately notify the Department of any significant change in its financial capacity, technical capability, or ownership status by notice in writing setting out the fully details of the change. The notice must be sent to the Category Manager dtfmarketingservicesadmin@dtf.vic.gov.au

A Prequalified Supplier must ensure that contact details or addresses are kept up to date in the eProcurement platform.

For the avoidance of doubt, the Prequalified Supplier acknowledges that it is responsible for ensuring that any details published on the Register pertaining to it (including, without limitation, insurance details) are correct and amending that information as necessary.

19. Solicitation

A Prequalified Supplier must not use its Prequalification status on the Register to unreasonably solicit Participating Agencies for business.

20. Use of Prequalification status for advertising and promotion

An Applicant may not use any information relating to its Application or any subsequent Prequalification in its advertising or promotional material or publish such information in any form without the express written consent of the Department or the relevant Participating Agency.

A Prequalified Supplier may generally promote its credentials and relevant experience via the eProcurement platform or any subsequent eProcurement system in use for the Register in accordance with its Application.

21. Confidentiality and Privacy

(a) The Department will treat as confidential any information of or relating to an Applicant or Prequalified Supplier submitted in an Application which is designated in writing by the Applicant or Prequalified Supplier (as the case may be) as confidential to the Applicant or Prequalified Supplier. The Department will not disclose any such information unless:

(i) the disclosure is required for the purpose of briefing Ministers or the Government;

(ii) the disclosure is required for the Department to respond to a request from the Victorian Auditor General’s Office, internal audit or a Government integrity body;

(iii) compelled to do so by law;

(iv) the information is already legally in the public domain; or

(v) the Prequalified Supplier has consented to the disclosure.

(b) The Prequalified Supplier acknowledges that any information provided in its Application (except for any information expressly designated in writing by the Prequalified Supplier as confidential to the Prequalified Supplier) will be published on the eProcurement platform or any subsequent eProcurement system in use. No responsibility is accepted by the Department for any consequences arising from the publication of any such information.

(c) Information relating to Prequalified Suppliers published on the Register in accordance with these Prequalification Terms will only be made available to authorised representatives of Participating Agencies upon registration on behalf of that Participating Agency (Agency Registration). Participating Agencies will deal with the information in accordance with their confidentiality obligations under the Agency Registration.

(d) The Department and Participating Agencies may share General Performance Information collected pursuant to these Prequalification Terms with each other and other Participating Agencies for the purpose of monitoring performance and to determine continued eligibility for Prequalification.

(e) The Prequalified Supplier will (and will ensure that its employees, agents and advisers will):

(i) use and reproduce any confidential information of any one or more of the Department, a Participating Agency or the State only to perform its obligations in relation to the Register; and

(ii) not disclose or otherwise make available the confidential information of any one or more of the Department, a Participating Agency or the State, other than to personnel who have a need to know the information to enable the Prequalified Supplier to perform the Register services.

(f) The Prequalified Supplier agrees, and must ensure that its employees, agents and subcontractors observe all applicable privacy laws with respect to any act done, or practice engaged in, by the Prequalified Supplier in respect of the Register.

22. Termination of Register

The Department may, in its absolute discretion, terminate the Register with 90 days’ notice in writing to Prequalified Suppliers. In addition, the Department will publish notice of such termination on the Buying for Victoria website.

23. Notices

Subject to anything else in these Prequalification Terms, any notice which the Department is required to provide to an Applicant or a Prequalified Supplier will be provided by electronic mail and sent to the email address set out in the Application (in relation to an Applicant) or on the Register (in relation to a Prequalified Supplier).

24. Record retention and reporting

Prequalified Suppliers must keep true and particular records of all Services performed in accordance with Agreements entered into pursuant with this Register. Without limiting Prequalified Suppliers’ obligations in this regard, Prequalified Suppliers must retain records of:

(a) all Requests for Quote received;

(b) all Supplier Proposals prepared and submitted in response to Requests for Quote; and

(c) details of all Agreements entered into, including, for example, the number of Agreements, the names of the relevant Purchasers, the quote included in the Supplier Proposal, and the final invoiced amount.

All records retained in accordance with these Prequalified Terms must be kept for a period of seven years following the termination of the Register.

The Department may, from time to time, request reports from Prequalified Suppliers detailing the information described in this clause 24.

Part 9 – Definitions and interpretation

25. Definitions

Unless the context otherwise requires, capitalised terms have the following meaning:

(a) Applicant means an entity that has submitted an Application to become a Prequalified Supplier to be admitted on the Register.

(b) Application means an application for Prequalification in the form prescribed by the Department.

(c) Category Manager means the person nominated by the Department from time to time.

(d) Department means the Department of Treasury and Finance, for and on behalf of the State.

(e) Government Policy means the policy of the government of Victoria.

(f) Insolvency Event means gone into liquidation or a receiver, receiver and manager or mortgagee’s or chargee’s agent is appointed or becomes subject to any form of insolvency administration or arrangement, or in the case of an individual, becomes bankrupt or enters into a scheme or arrangement with creditors.

(g) Participating Agency means:

(i) a public sector body as defined in section 4 of the Public Administration Act 2004 (Vic) and each office holder as defined in section 16 of the Public Administration Act 2004 (Vic);

(ii) a Government Owned Entity, meaning a statutory corporation, a State owned company, a State body or a State business corporation as those terms are defined in the State Owned Enterprises Act 1992 (Vic), as amended from time to time;

(iii) a ‘Council’ as defined in the Local Government Act 1989 (Vic), as amended from time to time;

(iv) an entity which receives the majority of its funding from any of the entities listed in paragraphs (i) to (iii) or any entity under the control of any of the entities listed in paragraphs (i) to (iii); or

(v) an entity which is located in Victoria and:

1. listed in the Victorian Government Directory, as amended from time to time; or

2. approved in writing by the Department as being a Participating Agency for the purposes of these Prequalification Terms,

but excludes the Commonwealth, a Territory, the Crown in right of a State other than Victoria, and an agency of instrumentality of any of them.

(h) Prequalification means the status given to a successful Applicant under the Prequalification Terms and Prequalified has a corresponding meaning.

(i) Prequalification Requirements means the mandatory requirements, including those set out in the Application and the Scope, that an Applicant must meet in order to achieve and maintain Prequalification.

(j) Prequalification Terms means these terms, including all Annexures, giving effect to the Prequalification on the Register.

(k) Prequalified Supplier means a supplier who has applied for and been granted Prequalification in one or more categories of the Register

(l) Privacy Statement means the statement published as www.dtf.vic.gov.au/Legal/Privacy, as amended from time to time.

(m) Register means the register of Prequalified Suppliers administered by the Department.

(n) Scope means the scope of services, including any relevant performance requirements, technical constraints, warranties and quality standards, as set out in Part 3.

(o) State means the State of Victoria.

26. Terms not defined in these Prequalified Terms

Capitalised terms used in these Prequalification Terms but not defined in these Prequalified Terms will have the meaning given to those terms in the Standard Marketing Services Terms.

27. Interpretation

Unless expressed to the contrary,

(a) ‘including’ and similar expressions are not words of limitation;

(b) if a word or phrase is defined its other grammatical forms have corresponding meanings;

(c) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning; and

(d) headings are for convenience only

© State of Victoria 2020 (Department of Treasury and Finance)

Parties:

• The Purchaser specified in the Purchase Order (Purchaser).
• The Service Provider specified in the Purchase Order (Service Provider).

Background

A The Marketing Services Register has been established to streamline the Victorian Government’s purchasing of marketing services. It simplifies the procurement process for the Victorian Government when engaging with suppliers for marketing services and reduces the administration costs involved in tendering to the mutual benefit of both parties.

B The Purchaser appoints the Service Provider to provide the Services on and subject to the terms of this Contract.

Agreed terms

1. Interpretation

1.1 Definitions

In this Contract:

Agreement means this Contract and includes the schedules and any annexures or documents incorporated by reference, which arises between the Purchaser and the Service Provider when both parties sign a Purchase Order in accordance with clause 7.

Approved Services Providers means service providers who are members of the Marketing Services Register.

Auditor-General means:

(a) the office of the Auditor-General established under the Constitution Act 1975 (Vic);

(b) the Auditor-General’s office established under the Audit Act 1994 (Vic); and

(c) any other person or entity that may from time to time perform the functions of the Auditor-General or the Auditor-General’s office.

Authorised Representative means, in respect of a Purchaser, a person who the Purchaser nominates in writing as having authority to bind that Purchaser.

Background Intellectual Property means the Intellectual Property of a party which was either created:

(a) before the Commencement Date; or

(b) independently of this Agreement,

and all improvements to such Intellectual Property by the party.

Business Day means a day which is not a Saturday, Sunday or public holiday (being a public holiday appointed as such under the Public Holidays Act 1993 (Vic)) in Melbourne.

Code of Practice means a code of practice as described in, and approved under the Privacy and Data Protection Act 2014 (Vic).

Commencement Date means the date for commencement of the Services recorded in the Purchase Order.

Confidential Information means any technical, scientific, commercial, financial or other information of, about, or in any way related to, the Purchaser, including any information designated by the Purchaser as confidential, which is disclosed, made available, communicated or delivered to the Service Provider in connection with this Agreement (including information in the Register), but excludes information:

(a) which is in or which subsequently enters the public domain other than as a result of a breach of this Agreement;

(b) which the Service Provider can demonstrate was in its possession prior to the date of this Agreement;

(c) which the Service Provider can demonstrate was independently developed by the Service Provider;

(d) which is lawfully obtained by the Service Provider from another person entitled to disclose such information; or

(e) which is required to be disclosed by Law or court order.

Contract means this agreement containing the Standard Marketing Services Terms.

Contracts Publishing System means the system of the Victorian Government for publication of details of contracts entered into by Victorian Government departments, including any amended or successor system.

Control means, in relation to the Service Provider, the ability of any person directly or indirectly to exercise effective control over the Service Provider (including the ability to determine the outcome of decisions about the financial and operating and other policies of the Service Provider ) by virtue of the holding of voting shares, units or other interests in the Service Provider or by any other means.

Data means all data, information, text, drawings, statistics, analysis and other materials embodied in any form which is:

(a) supplied by or on behalf of the Purchaser in connection with this Agreement (Input Data); or

(b) generated, placed, stored, processed, retrieved, printed, accessed or produced utilising the Input Data, the Services or the deliverables.

Expiry Date means the date of expiry recorded in the Purchase Order.

Fees means a fixed or capped fee payable to the Service Provider for the provision of specified Services under this Agreement.

Health Privacy Principles means the health privacy principles set out in the Health Records Act 2001 (Vic).

IBAC means the commission established under the Independent Broad-based Anti- corruption Commission Act 2011 (Vic) and includes any other organisation that may, from time to time, perform the functions of the commission.

Information Privacy Principles means the information privacy principles set out in the

Privacy and Data Protection Act 2014 (Vic).

Intellectual Property Rights means all intellectual property rights at any time recognized by law, including all present and future copyright and neighbouring rights, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, confidential information (including trade secrets and know how), registered designs, circuit layouts, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Key Personnel means the key personnel specified in the Purchase Order.

Laws means:

(a) any statute, regulation or subordinate legislation of the Commonwealth of Australia, the State of Victoria or local or other government in force in the State of Victoria, irrespective of where enacted; and

(b) lawful requirements of any government or government department or other body or a governmental, semi-governmental, judicial, municipal, statutory or public entity or authority (including a statutory authority or a State-owned enterprise), a self- regulatory authority established under statute or a stock exchange (wherever created or located) or a person (whether autonomous or not) who is charged with the administration of a law.

Licence means a non-exclusive, world-wide, everlasting, irrevocable, royalty free licence to the Purchaser to exercise all rights in relation to the Intellectual Property it applies to as if the licensee were the owner, including the right to sub-license. A Licence does not include the right to transfer or assign the Intellectual Property, or to seek or enforce remedies for infringements of the Intellectual Property against a third party.

Marketing Services Register or Register means the State's electronic register to facilitate the procurement of marketing services.

Moral Right has the meaning given to that term in the Copyright Act 1968 (Cth) and includes a right of a similar nature that is conferrable by statute, and that exists or comes into existence anywhere in the world.

Purchase Order means an order for Services submitted by the Purchaser to the Service Provider in accordance with clause 7 that is in or substantially in the form set out in Schedule 2.

Project Intellectual Property means all Intellectual Property (excluding Background Intellectual Property) developed, created, discovered, brought into existence or otherwise acquired (other than from the Purchaser) by the Service Provider, under this Agreement.

Protective Data Security Standards means any standard issued under Part 4 of the Privacy and Data Protection Act 2014 (Vic) and any policies or protocols issued by the Purchaser to ensure compliance with those standards. Rates means the rates (whether charged on an hourly, daily, weekly or other time-related basis) payable to the Service Provider for the provision of specified Services in the Purchase Order.

Request for Quote means a request from the Purchaser for the provision of Services, which is submitted through the Register, in the form of a request for quote, request for tender or any other form and specifies the type or types of services being requested in the form set out on the Website.

Services means the marketing services (or any of them) specified in the Purchase Order.

Service Levels means the service levels the Service Provider must comply with in performing its obligations under this Agreement (which may be specified in the Request for Quote, Supplier Proposal, Purchase Order and/or Supplier Proposal).

Special Conditions means any special conditions recorded in the Purchase Order.

Supplier Proposal means the response to a Request for Quote, which is provided by the Service Provider through the Register setting out a quote and a detailed methodology/proposal for delivering the Services, and includes any documentation attached to or incorporated by reference in the Supplier Proposal in the form set out in Schedule 3.

Standard Marketing Services Terms means the terms and conditions contained in this Contract, applying to the provision of Services through the Marketing Services Register.

Staff Costs means Pay as You Go tax, withholding tax, superannuation contributions or charge amounts, fringe benefits tax, workers’ compensation insurance premiums, payroll tax and any like taxes and charges arising out of or in relation to this Agreement, or any engagement arising under this Agreement (together with all interest or penalties payable by reference to those costs).

Supplier Code of Conduct means the code of conduct available at http://www.procurement.vic.gov.au/Buyers/Supplier-Code-of-Conduct , as updated from time to time.

Supplier Rules of Use means the rules of use relating to the Marketing Register and available at the Website.

State means the Crown in right of the State of Victoria.

Term means the term of this Agreement determined in accordance with clause 2. Victorian Public Entity means:

(c) a public sector body as defined in section 4 of the Public Administration Act 2004

(Vic);

(d) a statutory corporation, a State owned company, a State body or a State business corporation as those terms are defined in the State Owned Enterprises Act 1992 (Vic);

(e) a "Council" as defined in the Local Government Act 1989 (Vic); or

(f) an entity which receives the majority of its funding from any of the entities listed in paragraphs (a) to (c) or any entity under the control of any of the entities listed in paragraphs (a) to (c).

Website means the world wide website maintained by the Department of Treasury and Finance and located at universal resource locator http://www.buyingfor.vic.gov.au/ as amended from time to time.

1.2 Interpretation

Unless expressed to the contrary, in this Agreement:

(a) words in the singular include the plural and vice versa;

(b) any gender includes the other genders;

(c) if a word or phrase is defined its other grammatical forms have corresponding meanings;

(d) “includes” means includes without limitation;

(e) no 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;

(f) a reference to:

(i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;

(ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;

(iii) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced;

(iv) an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation;

(v) “$”, “dollars” or “AUD” is a reference to the lawful currency of the Commonwealth of Australia;

(vi) a party or parties is a reference to the Purchaser and the Service Provider (as the case requires); and

(vii) the Purchaser is a reference to the State; and

(g) if the date on or by which any act must be done under this Agreement is not a Business Day, the act must be done on or by the next Business Day.

1.3 Headings

Headings do not affect the interpretation of this Agreement.

2. Term

2.1 Term of the Agreement

(a) This Agreement will commence on the Commencement Date and will expire on the Expiry Date.

(b) This Agreement will remain in force for the duration of the period stated in the Purchase Order, subject to:

(i) earlier termination or expiry in accordance with the provisions of this Agreement; or

(ii) extension in accordance with the procedure (if any) specified in the Purchase Order.

3. Agreement subject to policy

The terms of this Agreement are subject to the terms of the Victorian Government’s procurement policies, as those policies are amended from time to time. However, if any such changes have a material negative financial impact on the Service Provider, then subject to clause 29.2, the Purchaser and the Service Provider will discuss in good faith any necessary amendments to this Agreement.

4. Liability and interdependence

The Service Provider acknowledges that, notwithstanding anything else in this Agreement, the Purchaser is solely responsible for the acts or omissions of the Purchaser, including any liability for moneys owing to the Service Provider. For the avoidance of doubt, the Service Provider may only enforce this Agreement against the Purchaser.

5. Performance of services

5.1 Status of Service Provider

The Service Provider warrants that there is no legal impediment to its provision of the Services on the terms set out in this Agreement.

5.2 Scope of Services

The Service Provider must provide the Services set out in the Purchase Order.

5.3 Purchaser Requirements

The Service Provider must:

(a) ensure that the Services comply with the Service Levels as specified in the Purchase Order; and

(b) comply with reasonable directions given by the Purchaser in discharging its obligations under this Agreement.

5.4 Compliance with Service Levels

In the event that the Purchase Order identifies Service Levels to be met by the Service Provider, the Service Provider acknowledges that:

(a) a failure to comply with the Service Levels is a breach of this Agreement;

(b) the Purchaser's remedy will be determined by reference to these Standard Marketing Services Terms.

5.5 Quality of Service

The Service Provider must:

(a) provide the Services in a proper, timely and efficient manner using the standard of care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent, expert and experienced provider of services that are similar to the Services;

(b) ensure the highest quality of work and the delivery of the Services with the utmost efficiency;

(c) act in good faith and in the best interests of the Purchaser;

(d) keep the Purchaser informed of all matters of which it ought reasonably be made aware, and provide such information in relation to the provision of the Services as may reasonably be required by the Purchaser; and

(e) fully comply with its obligations and duties under this Agreement.

5.6 Preparation of Project Plan

If requested in the Request for Quote, the Service Provider must prepare a project plan (including relevant milestones) and submit it to the Purchaser for approval by the date specified in the Purchase Order.

5.7 Approval of Project Plan

If the Service Provider is required to submit a project plan, the Purchaser must review it promptly. The Service Provider must accommodate any requests for alteration reasonably made by the Purchaser in order to satisfy the requirements of this Agreement.

5.8 Inability to provide Services

If, at any time during the Term, the Service Provider is unable or is likely to become unable, for whatever reason, to provide any or all of the Services, the Service Provider must immediately notify the Purchaser of that fact.

5.9 Service Provider to provide equipment

The Service Provider must provide, at its cost, any and all equipment (including computer hardware and software and any ancillary support) necessary for the performance of the Services. Without limiting the foregoing, the Service Provider must provide the equipment specified in the Purchase Order.

5.10 Time of the essence

Time will be of the essence in the performance of this Agreement.

6. Personnel

6.1 Provision of Personnel

The parties will each utilise such Personnel as are necessary to enable them to fulfil their respective obligations under this Agreement. Each party must ensure that the Personnel which it utilises pursuant to this clause has the requisite skills and experience.

6.2 Entry onto Purchaser's Premises

The Service Provider must:

(a) provide or procure the provision of such information as can be lawfully provided and which is reasonably requested by the Purchaser concerning the Personnel it proposes to bring onto the Purchaser's premises for the purposes of this Agreement;

(b) provide suitable replacement Personnel should the Purchaser, on reasonable grounds, deny access to or request removal of any Personnel; and

(c) ensure its Personnel, when on the Purchaser's premises or when accessing the Purchaser's facilities and information, comply as necessary with the reasonable requirements and directions of the Purchaser with regard to conduct, behaviour, safety and security (including submitting to security checks as required and complying with any obligation imposed on the Purchaser by law).

6.3 Key Personnel

(a) If Key Personnel are required to perform the Services, as indicated in the Purchase Order, then the Services must be performed by the persons specified in the Purchase Order. The Service Provider must provide the Key Personnel to provide the relevant Services and may not remove or replace any Key Personnel.

(b) If, notwithstanding clause 6.3(a), any of the Key Personnel are unable to provide the Services, the Service Provider must promptly notify the Purchaser and propose a suitably qualified and experienced substitute (Replacement Staff).

(c) Any Replacement Staff proposed in accordance with clause 6.3(b) must be approved by the Purchaser in writing and will not be Key Personnel until the Purchaser provides such approval.

(d) The Purchaser may not unreasonably withhold its approval of Replacement Staff under clause 6.3(c) but the Purchaser may give its approval subject to such conditions as the Purchaser reasonably considers necessary to protect the Purchaser’s interests under this Agreement.

7. Formation of the Agreement

(a) The Agreement is formed once the parties complete and sign the Purchase Order following the exchange between the Purchaser and the Service Provider of the Request for Quote and the Supplier Proposal.

(b) The parties will be bound by this Agreement on and from the Commencement Date stated in the Purchase Order.

(c) The Agreement will consist of:

(i) the Standard Marketing Services Terms;

(ii) the Schedules to the Standard Marketing Services Terms;

(iii) the Purchase Order;

(iv) the Supplier Proposal;

(v) the Request for Quote; and

(vi) any other document that is expressly incorporated by reference by the documents referred to in paragraphs (i) to (v) above.

(d) Where there is inconsistency between the terms of two or more documents referred to in clause 7(c), the terms of the document in highest on the list will prevail.

8. Performance Management and Monitoring

The Purchaser may at any time conduct performance reviews to evaluate, monitor or review the Service Provider’s performance and compliance with this Agreement. The Service Provider must participate and cooperate in any such performance reviews.

9 Access to records

9.1 Service Provider to retain records

The Service Provider must, for a period of seven (7) years after the Term, keep true and particular accounts and records of:

(a) all Services supplied under this Agreement; and

(b) all associated records including:

(i) records of purchase of Services by the Service Provider; and

(ii) all supporting materials used to generate and substantiate invoices submitted in respect of Services supplied under this Agreement.

Without limitation to the foregoing, the Service Provider must comply with, and must follow any reasonable directions by the Purchaser which are relevant to, any applicable Commonwealth, State or Territory legislation relating to archival requirements

9.2 Right to access and audit

(a) The Purchaser or its duly authorised representatives will have the right, after giving reasonable notice at any time during business hours, to inspect and/or audit the accounts and records of the Service Provider relating to the provision of Services, and of all other matters relevant to the calculation of the Rates and/or Fees. Such representatives will be entitled (at the expense of the Purchaser) to take copies of or extracts from any such records.

(b) The right of access and audit granted under to clause 9.2(a) may be exercised by the Purchaser at any time during the Term or in the seven (7) year period following the expiry of the Term.

(c) For the avoidance of doubt, each party will bear its own costs of conducting or participating in an audit under clause 9.2(a).

10. Fees and Rates

10.1 Fees and Rates

The Fees and/or Rates payable in respect of this Agreement are specified in the Purchase Order.

10.2 Invoicing

(a) The Service Provider must submit to the Purchaser a tax invoice or tax invoices in respect of the Services provided under this Agreement:

(i) as soon as practicable after the completion of the Services; or

(ii) as otherwise provided for in the relevant Purchase Order.

(b) A tax invoice submitted for payment pursuant to clause 10.2 must contain the information necessary to be a tax invoice for the purposes of the A New Tax System (Services and Services Tax) Act 1999 (Cth) in addition to the following:

(i) Purchaser Order reference number;

(ii) the Service Provider’s name;

(iii) the Service Provider’s ABN;

(iv) the Purchaser’s ABN and address;

(v) the date of issue of the tax Invoice;

(vi) details of the Rates or Fees and expenses including the items to which they relate;

(vii) the total amount payable (including GST);

(viii) the GST amount shown separately; and

(ix) any other information specified in the Purchase Order.

All invoices must be sent to the person(s) (if any) specified in the relevant Purchase Order, to the address specified in the Purchase Order.

10.3 Payment of invoice

(a) Subject to the remainder of this clause 10.3, the Purchaser will pay the invoiced amount to the Service Provider within thirty (30) days of receipt of the invoice. Payment may be made by electronic funds transfer or any other manner agreed by the parties from time to time.

(b) The Purchaser’s obligation to pay the Service Provider the Fees and/or Rates specified in an invoice is subject to performance of the Services in the relevant period to the Purchaser’s reasonable satisfaction.

(c) An invoice will not be paid until such time as the invoice is certified for payment by the Authorised Representative of the Purchaser. An invoice will not be certified for payment unless the Authorised Representative of the Purchaser is satisfied that it is correctly calculated with respect to the Services that are the subject of this Agreement and the Service Provider is entitled to claim payment.

(d) If the Authorised Representative of the Purchaser disputes the invoiced amount (whether in whole or in part) for any reason, the Purchaser must pay the undisputed amount of such invoice (if any), and notify the Service Provider of the amount the Purchaser believes is due for payment. If the Purchaser and the Service Provider are unable to agree on the balance of the invoiced amount, the dispute will be referred for determination in accordance with clause 21.

(e) Payment of an invoice is not to be taken as:

(i) evidence or an admission that the Services have been provided in accordance with the Service Levels and otherwise in accordance with this Agreement, including the Purchase Order;

(ii) evidence of the value of the Services supplied; or

(iii) an admission of liability,

but must be taken only as payment on account.

(f) In the event of a dispute as to whether an amount is payable pursuant to an invoice (whether under clause 10.3) or otherwise), the Purchaser may withhold the disputed portion pending resolution of the dispute but must pay the undisputed portion within thirty (30) days.

10.4 Fair payment

(a) A Purchaser will, on demand by the Service Provider, pay simple interest on a daily basis on any overdue amount, at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic).

(b) For the purposes of clause 10.4(a), overdue amount means an amount (or part thereof) that:

(i) is not, or is no longer, disputed in accordance with this Agreement;

(ii) is due and owing under a tax invoice (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) properly rendered by the Service Provider in accordance with this Agreement; and

has been outstanding for more than 30 days from the date of receipt of the invoice or the date that the amount ceased to be disputed, as the case may be.

10.5 Expenses

Expenses or other disbursements may only be charged by the Service Provider in accordance with the Purchase Order.

11. Competitive pricing

11.1 Competitive pricing principles

The Purchaser and the Service Provider agree that it is their common intention that the Rates and Fees will be (and will remain, for the Term) commercially competitive in terms of:

(a) the prices offered by the Service Provider to other customers whose orders for services are comparable to the orders for Services under this Agreement; and

(b) prices, and terms and conditions, offered by other service providers in the market for services which are the same as or equivalent to the Services.

11.2 Most favoured pricing

The Service Provider must ensure at all times during the Term that the Rates and Fees are no less favourable than any rates and fees at which the Service Provider provides or offers to provide services that are equivalent or similar to the Services to any other customer of the Service Provider whose orders of services are of a comparable volume to those placed by the Purchaser under this Agreement.

12. Failure to perform

(a) Without limiting any other clause of this Agreement, or any other remedy the Purchaser may have, if the Service Provider fails to provide or perform any of the Services in accordance with the requirements of this Agreement (including, without limitation any requirements stated in the Purchase Order) and the applicable Service Levels, the Purchaser will not be required to pay for those Services and may, by notice in writing to the Service Provider, require the Service Provider to:

(i) remedy any default (if the default is capable of being remedied) at the Service Provider’s own expense; or

(ii) re-perform the Services (if the Services are capable of being re-performed by the Service Provider),

within the time specified in the notice (which must be reasonable having regard to the nature of the Services).

(b) If the remedied or re-performed Services are remedied or re-performed in accordance with the applicable Service Levels and otherwise to the satisfaction of the Purchaser, then the Purchaser will pay the applicable Rates or Fees for those remedied or re-performed Services (which the parties acknowledge may be less than the cost to the Service Provider of remedying or re-performing the Services).

(c) If the default referred to in clause 12(a) is not capable of being remedied or the Services are not capable of being re-performed, or the Service Provider fails within the time specified to remedy the default or re-perform the Services, the Purchaser may either:

(i) remedy that default or re-perform the Services itself; or

(ii) have the Services remedied or re-performed by a third party,

and in either case, the Service Provider must pay the reasonable costs incurred by the Purchaser in doing so.

13. Liability

(a) The Service Provider must indemnify the Purchaser and each of its officers, employees and agents (Indemnified Party) against any loss, damage, claim, action or expense (including legal expense) which any Indemnified Party suffers as a direct or indirect result of any of the following:

(i) a breach of this Agreement by the Service Provider, including any failure to provide the Services in accordance with this Agreement;

(ii) any warranty given by the Service Provider under this Agreement (including any warranty given in a Purchase Order) being incorrect or misleading in any way; or

(iii) any negligent act or failure to act by the Service Provider or any of the Service Provider’s employees, agents, officers or sub-contractors,

except to the extent that any such loss, damage, claim, action or expense is caused by the negligence or other wrongful act or omission of a Purchaser, its employees or agents.

(b) If any indemnity payment is made by the Service Provider under this clause 13, the Service Provider must also pay to the Indemnified Party an additional amount equal to any tax which is payable by the Indemnified Party in respect of that indemnity payment.

(c) If the Service Provider fails to meet any date for delivery of the Services as specified in a Purchase Order, the Service Provider must pay to the Purchaser any liquidated damages in accordance with the Purchase Order.

14. Warranties

The Service Provider warrants to the Purchaser that:

(a) the provision of the Services will be carried out with all due care and skill and in accordance with all applicable standards, principles and practices;

(b) the Service Provider has the accreditation or membership of professional or other

bodies in relation to the provision of the Services as set out in the Supplier Proposal for the provision of the Services and that it will use its best endeavours to maintain such accreditation or membership during the Term;

(c) it and its employees, agents and contractors are appropriately qualified and have the requisite knowledge, skill and expertise to provide the Services;

(d) whilst on premises owned or controlled by the Purchaser, the Service Provider and its employees, agents and contractors will at all times comply with the Purchaser’s lawful directions and policies of which the Service Provider is notified or is otherwise aware, including any applicable occupational health and safety and security policies;

(e) where the Purchaser has, either expressly or by implication, made known to the Service Provider any particular purpose for which the Services are required, the Services will be performed in such a way as to achieve that result;

(f) the provision of the Services will not infringe any right of any third party (including, without limitation, any Intellectual Property Right) or any Laws;

(g) all representations made by the Service Provider in or in connection with Supplier Proposal were and remain accurate.

15. Change in Control

(a) The Service Provider must notify the Purchaser in writing of any change in Control of the Service Provider (or of the ultimate holding company of the Service Provider) within seven (7) days after that change occurs (Notice).

(b) The Purchaser may, upon receiving the Notice, in its absolute discretion by notice in writing to the Service Provider, terminate this Agreement, such termination to take effect at any time within the immediately succeeding twelve (12) months after the Purchaser receives the Notice.

16. Insurance

16.1 Service Provider to maintain insurance

(a) The Service Provider must (and must ensure that any sub-contractors appointed by it under clause 22) obtain and maintain for the Term the following insurances:

(i) a broad form public liability insurance to the value of at least $500,000 per claim;

(ii) professional indemnity insurance to the value of at least $250,000 per claim, subject to:

(A) if the Purchaser requires it, the Service Provider must increase its professional indemnity insurance to any amount specified by the Purchaser up to $5 million per claim; and

(B) the Purchaser’s exercise of its right under clause 16.1(ii)(A) is an option which may be exercised entirely at the Purchaser’s discretion; and

(iii) any other insurance required by law.

(b) The Service Provider must provide the Purchaser with evidence of the currency of any insurance it is required to obtain on request by the Purchaser at any time during the Term.

(c) Where any insurance the Service Provider is required to obtain and maintain expires during the Term (Initial Insurance), the Service Provider must provide the Purchaser with evidence of the currency of relevant replacement insurance prior to the expiration of the Initial Insurance.

(d) Any insurance obtained pursuant to clause 16.1 must be:

(i) taken out with an insurer acceptable to the Purchaser; and

(ii) on terms (including any excess) which are acceptable to the Purchaser.

16.2 Additional insurance amounts

The Service Provider acknowledges and agrees that, in addition to an increase under clause 16.1(a)(ii)(A), and without limiting clause 16.1(a)(ii)(A), if the Purchaser requested in the Request for Quote that the Service Provider maintain insurance above the insurance limits specified in clause 16.1(a), the insurance limits in the Request for Quote will apply to this Agreement.

16.3 Absence of insurance

The Service Provider must immediately advise the Purchaser if at any time during the Term of this Agreement the Service Provider ceases to have the benefit of an insurance policy as required in clause 16.1 or clause 16.2.

17. Termination

17.1 Termination of Agreement

The Purchaser may terminate this Agreement by notice in writing to the Service Provider (such termination to take effect at any nominated time within the immediately succeeding twelve (12) months) if:

(a) the Service Provider fails to provide the Services in accordance with the Service Levels or otherwise in accordance with the requirements of this Agreement;

(b) the Purchase Order or the Service Levels give the Purchaser the right to do so;

(c) the Service Provider fails to remedy, to the satisfaction of the Purchaser, any breach of this Agreement (which in the reasonable opinion of the Purchaser is able to be remedied) within fourteen (14) days after the date on which the Purchaser issues the Service Provider a written notice requiring the Service Provider to remedy the breach;

(d) the Service Provider breaches any material provision of this Agreement and in the reasonable opinion of the Purchaser such breach cannot be remedied;

(e) the Service Provider or any of its employees, agents or sub-contractors are guilty of fraud, dishonesty or any other serious misconduct;

(f) during the Term there is a change in governmental policy that affects the Purchaser’s ability to perform its obligations under this Agreement or which, in the reasonable opinion of the Purchaser, has the effect of making the provision of Services under this Agreement unviable, inappropriate or otherwise unsuitable;

(g) the Service Provider commits any act or does anything that is contrary to prevailing community standards, or is otherwise regarded by the public as unacceptable or which brings the reputation of the Service Provider into disrepute and as a consequence the Purchaser believes that its continued association with the Service Provider will be prejudicial or otherwise detrimental to the reputation of the State; or if the Service Provider:

(i) being a partnership, company or other composite body undergoes a change in its structure which, in the reasonable opinion of the Purchaser, limits the capacity of the Service Provider to provide the Services or otherwise preclude or adversely affect the Service Provider’s ability to carry out its obligations and duties under this Agreement; or

(ii) goes into liquidation or a receiver and manager or mortgagee’s or chargee’s agent is appointed or becomes subject to any form of insolvency administration or arrangement, or in the case of an individual, becomes bankrupt or enters into a scheme or arrangement with creditors.

17.2 Termination of Agreement without cause

(a) The Purchaser may terminate this Agreement without cause by giving the Service Provider not less than fourteen (14) days’ notice in writing.

(b) For the avoidance of doubt, where this Agreement is terminated by a Purchaser pursuant to clause 17.2, the Purchaser will pay to the Service Provider all amounts owing in respect of Services undertaken, and work in progress as at the date of termination, provided that such Services or work in progress have, in the reasonable opinion of the Purchaser, been performed in accordance with the Service Levels and the requirements of this Agreement (including, without limitation, any requirements stated in the Purchase Order).

17.3 Consequences of termination or expiry

Termination or expiry of this Agreement will not prejudice any right of action or remedy which may have accrued to either party to it prior to termination or expiry (as the case may be).

18. Intellectual Property

(a) The Background Intellectual Property of each party remains the property of that party.

(b) The Service Provider will own all Project Intellectual Property unless clause 18(c) applies.

(c) The Purchaser will give written notice to the Service Provider prior to the delivery of all or part of the Services, if the Purchaser considers that all or part of the Project Intellectual Property arising from the delivery of the Services should be owned by the Purchaser.

(d) If the Purchaser gives written notice to the Service Provider under clause 18(c), the Project Intellectual Property specified in the notice is owned by the Purchaser.

(e) The Service Provider grants, and the Purchaser accepts, a Licence over:

(i) the Project Intellectual Property not owned by the Purchaser;

(ii) the Background Intellectual Property; and

(iii) any Intellectual Property of a third party, if any, to the extent needed to allow the Purchaser to enjoy the full benefit of the Services and the Agreement.

(f) At the request of the Purchaser, the Service Provider will provide the Purchaser with copies of all Licensed materials and Intellectual Property and in a way that allows the Purchaser to exercise the Purchaser’s rights under the Licence.

(g) The Service Provider warrants that it has the right to grant the Licences referred to in clause 18(e).

(h) he Service Provider will obtain all consents needed for any Licence, including in relation to any Moral Right.

(i) The Service Provider will properly manage the Project Intellectual Property to allow the Purchaser to enjoy the full benefit of the Services and this Agreement, which may include taking any necessary action to:

(i) register, maintain the registration of, protect, manage, exploit and (as appropriate) commercialise the Project Intellectual Property for the benefit of the Victorian public;

(ii) maintain, improve, enhance and develop the Project Intellectual Property to the fullest extent reasonably necessary to maintain its usefulness and appropriateness to the Service Provider and the Purchaser for the delivery of the Services;

(iii) use, reproduce, publish, adapt, disseminate, communicate to the public, broadcast, and perform the Project Intellectual Property for the benefit of the Victorian public; and

(iv) comply with all applicable Departmental or other Victorian government policies in respect of the Project Intellectual Property.

(j) The Service Provider will not accept co-funding, or involve any person in the delivery of the Services, on terms that would jeopardise or limit any Licence to be granted to the Purchaser without obtaining the Service Provider’s prior agreement and consent in writing.

19. Accident compensation

The Service Provider must ensure that, in respect of its employees and contractors and any other persons engaged by the Service Provider to provide the Services, it:

(a) complies with the provisions of the Accident Compensation Act 1985 (Vic);

(b) insures against its liability to pay compensation whether under legislation or otherwise; and

(c) produces to the Purchaser on request any certificates or like documentation required by the Accident Compensation Act 1985 (Vic).

20. Confidentiality and privacy

20.1 Use of Confidential Information

(a) The Service Provider must (and must ensure that its employees, agents, sub-contractors and advisers):

(i) use and reproduce Confidential Information only to perform the Service Provider’s obligations under this Agreement (including, without limitation, any obligations stated in the Purchase Order); and

(ii) not disclose or otherwise make available Confidential Information other than to personnel who have a need to know the information to enable the Service Provider to perform the Service Provider’s obligations under this Agreement (including, without limitation, any obligations stated in the Purchase Order).

(b) All Confidential Information will remain the property of the Purchaser and all copies or other records containing the Confidential Information (or any part of it) must be returned by the Service Provider to the Purchaser on termination or expiry of this Agreement.

(c) The Purchaser will be entitled (in addition to any other remedy it may have) to seek an injunction or other equitable relief with respect to any actual or threatened breach by the Service Provider of this clause 20 and without the need on the part of the Purchaser to prove any special damage.

(d) The Service Provider must, if requested in writing by the Purchaser, require any person to whom Confidential Information will be disclosed, to execute a deed of confidentiality in the form of Schedule 4 at the cost of the Service Provider. Such deeds of confidentiality must be made available to the Purchaser at the request of the Purchaser.

20.2 Disclosure of Service Provider’s information

(a) Subject to clause 20.2(b), the Purchaser must keep confidential all Confidential Information of or relating to the Service Provider that is provided to it, whether under this Agreement, the Supplier Proposal or in accordance with any requirements of the Supplier Rules of Use, by or on behalf of the Service Provider.

(b) The Service Provider consents to the Purchaser publishing or otherwise making available information in relation to the Service Provider (and this Agreement and the provision of the Services):

(i) as may be required to comply with the Contract Publishing System;

(ii) to other Victorian Public Entities or Ministers of the State in connection with the use of the Services;

(iii) to any public sector agency (of the State, any other state or territory or the Commonwealth) for the purposes of benchmarking, provided that it will not identify the Service Provider;

(iv) to the Auditor-General

(v) to the ombudsman appointed under the Ombudsman Act 1973 (Vic);

(vi) to comply with Law, including the Freedom of Information Act 1982 (Vic);

(vii) to the IBAC; or

(viii) to otherwise satisfy any public disclosure obligations of the Purchaser.

20.3 Privacy

(a) The Service Provider acknowledges that it will be bound by the Information Privacy Principles, Health Privacy Principles and any applicable Code of Practice (together, Privacy Obligations) with respect to any act done or practice engaged in by the Service Provider for the purposes of the Agreement, in the same way and to the same extent as the Privacy Obligations would have applied to the Purchaser in respect of that act or practice had it been directly done or engaged in by the Purchaser.

(b) The Service Provider acknowledges that the Purchaser is bound by the Protective Data Security Standards. The Service Provider will not do any act or engage in any practice that would contravene or give rise to a breach of a Protective Data Security Standard in respect of any Data collected, held, used, managed, disclosed or transferred by the Service Provider, on behalf of the State, under or in connection with the Agreement.

21. Disputes

21.1 Parties to meet

If any dispute arises under or in connection with this Agreement ( Dispute) which Dispute is not able to be resolved by the parties within fourteen (14) days, the nominated senior executive officer (or equivalent) of each of the Purchaser and the Service Provider will promptly meet and discuss in good faith with a view to resolving such Dispute.

21.2 Mediation

(a) If any Dispute is unable to be resolved in accordance with clause 21.1 within fourteen (14) days, the parties agree to endeavour in good faith to settle the Dispute by mediation administered by the Australian Commercial Disputes Centre ( ACDC) before having recourse to arbitration or litigation.

(b) The mediation will be conducted in accordance with the mediation guidelines of ACDC (Guidelines) which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and the terms of those Guidelines are incorporated in this Agreement.

21.3 Arbitration or litigation

(a) If the parties fail to settle any Dispute in accordance with clause 21.2, the parties may agree to submit the Dispute for resolution to final and binding arbitration under the Rules of Arbitration of the Institute of Arbitrators and Mediators Australia by one or more arbitrators appointed in accordance with those rules.

(b) If the parties do not agree to refer the Dispute to arbitration in accordance with clause 20.3(a), either party may submit the Dispute for resolution to the exclusive jurisdiction of the Courts of Victoria, Australia.

21.4 Performance during Dispute resolution

The parties to a Dispute will continue to perform their respective obligations under this Agreement (including, without limitation, any obligations stated in the Purchase Order), pending the resolution of a Dispute under this clause 21.

21.5 Interlocutory relief

Nothing in this clause 21 is to be taken as preventing any party to a Dispute from seeking interlocutory relief in respect of such Dispute.

22. Sub-contracting

(a) Except as expressly provided in this Agreement, the Service Provider must not sub- contract to any third person any of its obligations under this Agreement without the prior written consent of the Purchaser, which consent may be given or withheld by the Purchaser in its absolute discretion.

(b) The Service Provider must ensure that any person engaged by it complies with all obligations imposed on the Service Provider by this Agreement. The Service Provider will not, as a result of any sub-contracting arrangement, be relieved from the performance of any obligation under this Agreement and will be liable for all acts and omissions of a sub-contractor as though they were the actions of the Service Provider itself.

23. Conflict of Interest

(a) The Service Provider warrants to the Purchaser that it does not, and will ensure that its employees, agents and contractors do not, hold any office or possess any property, are not engaged in any business, trade or calling and do not have any obligations by virtue of any contract whereby, directly or indirectly, duties or interests are or might be created in conflict with or might appear to be created in conflict with their duties and interest under this Agreement.

(b) The Service Provider must promptly inform the Purchaser of any matter which may give rise to an actual or potential conflict of interest at any time during the term and comply with any reasonable directions given by the Purchaser in terms of dealing with the conflict.

(c) The Service Provider acknowledges and agrees that failure to comply with this clause 23 will constitute a breach of a fundamental term of this Agreement.

24. Compliance with Law & Policy

The Service Provider must, in performing its obligations under this Agreement, comply with all Laws affecting or applicable to the provision of Services by the Service Provider. Without limitation to the foregoing, the Service Provider must comply with the provisions set out in Schedule 1.

25. Access and safety

25.1 Access to premises

If the Service Provider requires access to the premises of the Purchaser in connection with the provision of the Services, the Purchaser will, subject to its usual security requirements, permit the Service Provider reasonable access to the premises at such times as may be reasonably necessary to enable the Service Provider to provide the Services.

25.2 Obligations

When the Service Provider enters the premises of the Purchaser, the Service Provider must and must ensure that its employees, agents and contractors use all reasonable endeavours to:

(a) protect people and property;

(b) prevent nuisance and unnecessary noise and disturbance; and

(c) act in a safe and lawful manner and comply with the safety standards and policies of the Purchaser (as notified to the Service Provider).

25.3 No occupier’s liability

(a) The Purchaser and its officers, employees, agents and invitees will not be responsible for any damage done to the Service Provider’s property or to that of any of the Service Provider’s officers, employees, agents or sub-contractors or for any personal injury sustained by any of the Service Provider’s employees, agents or

sub- contractors occurring on the Purchaser’s premises as a result of:

(i) the negligence or recklessness of such employee, agent or sub-contractor; or

(ii) if such employee, agent or sub-contractor has failed to comply with the occupational health and safety and security policies of the Purchaser (as notified to the Service Provider).

The Service Provider unconditionally and irrevocably releases the Purchaser and its employees, agents and invitees from all such responsibility and agrees to indemnify each Purchaser, its officers, employees, agents and invitees (Indemnified Party) against any loss that the Indemnified Party may suffer as a result of any third party bringing an action against that Indemnified Party in relation to any such circumstances, except to the extent that such circumstances were caused directly as a result of the Indemnified Party’s negligence.

26. GST

26.1 Definitions

Terms used in this clause have the same meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

26.2 Consideration is exclusive of GST

Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.

26.3 Recipient to pay an additional amount

If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.

26.4 Reimbursement

If this Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (reimbursable expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense plus any GST payable by the other party.

27. Staff Costs

(a) The Service Provider must indemnify and keep indemnified the Purchaser from and against all liability for the Staff Costs in any way relating to the Services.

(b) If the Purchaser is or becomes liable to pay any Staff Costs, the Purchaser may deduct the amount of its liability for the Staff Costs from any amount due by the Purchaser to the Service Provider, whether under this Agreement or otherwise.

28. Notices

28.1 Giving a communication

A notice, demand, certification, process or other communication relating to this Agreement must be in writing in the English language, and may (in addition to any other method permitted by law) be sent by pre-paid post, pre-paid courier, facsimile, or by electronic mail as follows:

(a) to the Purchaser: at the address which is set out in the Purchase Order; and

(b) to the Service Provider: at the address which is set out in the Purchase Order.

28.2 Change of Service Provider's address

(a) If the Service Provider’s contact details change, it must notify the Purchaser.

(b) The Service Provider’s email address must at all times remain generic and must not be specific to an individual.

28.3 Time of delivery

A notice or document is taken to be delivered or served as follows:

(a) in the case of delivery in person or by courier, when delivered;

(b) in the case of delivery by post, two (2) Business Days after the date of posting;

(c) in the case of facsimile transmission, on receipt by the sender of a transmission report from the despatching machine showing: the date of transmission, the relevant number of pages, the correct telephone number of the destination facsimile machine and the result of the transmission as satisfactory; and

(d) in the case of electronic mail, if the receiving party has agreed to receipt in that form under this Agreement, and the message is correctly addressed to and successfully transmitted to that party’s electronic mail address (e-mail address), when acknowledgment of receipt is recorded on the sender’s computer.

28.4 After hours communications

If any notice or document is delivered or deemed to be delivered:

(a) after 5.00 pm in the place of receipt; or

(b) on a day which is a Saturday, Sunday or public holiday in the place of receipt,

it is taken as having been delivered at 9.00 am on the next day which is not a Saturday, Sunday or public holiday in that place.

29. General

29.1 Legal costs

Except as expressly stated otherwise in this Agreement, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under this Agreement.

29.2 Amendment

(a) Any variation to the terms and conditions of this Agreement must be recorded in the Special Conditions in the Purchase Order and must be signed by the parties.

(b) A Purchase Order may only be varied or replaced by a document executed by the Purchaser and the Service Provider.

29.3 Waiver and exercise of rights

(a) A single or partial exercise or waiver by a party of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.

(b) A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right by the first party.

29.4 Severability

(a) The parties agree that a construction of this Agreement that results in all provisions being enforceable is to be preferred to a construction that does not so result.

(b) Notwithstanding clause 29.4(a), any provision of this Agreement which is invalid or unenforceable is to be read down, if possible, so as to be valid and enforceable, and, if that is not possible, the provision shall, to the extent that it is capable, be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions.

29.5 Rights cumulative

Except as expressly stated otherwise in this Agreement, the rights of a party under this Agreement are cumulative and are in addition to any other rights of that party.

29.6 Governing law and jurisdiction

(a) This Agreement is governed by and is to be construed in accordance with the laws applicable in Victoria.

(b) Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

29.7 Entire understanding

(a) This Agreement, together with the Request for Quote and Supplier Proposal, contains the entire understanding between the parties as to the subject matter of the Purchase Order.

(b) Except as otherwise provided in clause 29.7(a):

(i) all previous and future negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this Agreement are merged in and superseded by this Agreement and are of no effect; and

(ii) no oral explanation or information provided either prior to or after the date of this Agreement by any party to another:

(A) affects the meaning or interpretation of this Agreement; or

(B) constitutes any collateral agreement, warranty or understanding between any of the parties.

29.8 Relationship of parties

This Agreement is not intended to create a partnership, joint venture or agency relationship between the Purchaser on the one hand and the Service Provider on the other hand.

29.9 Survival

Clauses 9 , 13, 16, 18, 20 and 21 of this Agreement, and any other provisions expressly stated to survive termination of expiry of this Agreement, survive the termination or expiry of this Agreement and may be enforced at any time.

Schedule 1

Compliance with Supplier Code of Conduct

The Service Provider acknowledges:

(a) that the Supplier Code of Conduct is an important part of the State's approach to procurement and describes the State's minimum expectations regarding the conduct of its suppliers;

(b) it has read and agrees to comply with the Supplier Code of Conduct which can be found at: http://www.procurement.vic.gov.au/Suppliers/Supplier-Code-of-Conduct , as updated from time to time; and

(c) the expectations set out in the Supplier Code of Conduct are not intended to reduce, alter or supersede any other obligations which may be imposed on the Service Provider, whether under this Agreement or at Law.

Schedule 2

Form of purchase order for marketing services

This Purchase Order is subject to, and incorporates the terms and conditions of, the Agreement for the provision of Marketing Services ( Agreement) between the Purchaser and the Service Provider, which terms are published on the Website.

Terms used and not defined in this Purchase Order shall have the meaning given to them by the Standard Marketing Services Terms.

For the avoidance of doubt, the Standard Marketing Services Terms apply to this Purchase Order. However, Purchasers should review the key items below with reference to the Standard Marketing Services Terms, in order to identify any additional requirements which may be specific to the engagement. If any additional terms and conditions are required as part of the Agreement, they should be described below. Prompts have been provided for some of the major items below, however, the Purchaser must ensure that all relevant items are completed where additional terms and conditions are required to those contained in the Standard Marketing Services Terms.

• Duration of Purchase Order and Extension Arrangements (clause 2 of Standard Marketing Services Terms)

• Scope of Services (clause 5.2 of Standard Marketing Services Terms)

• Service Levels (clause 5.4 of Standard Marketing Services Terms)

• Preparation of Project Plan and Project Plan to be Approved-By Date (clause 5.6 of Standard Marketing Services Terms)

• Fees & Rates (clause 10.1 of Standard Marketing Services Terms) Please insert the agreed Fees and Rates.

• Invoice Requirements (clause 10.2 and 10.3 of Standard Marketing Services Terms ) Please insert any additional invoice requirements relevant to your internal processes.

• Intellectual Property (clause 18 of Standard Marketing Services Terms)

• Notice details (clause 28 of Standard Marketing Services Terms)

Form of Supplier Proposal

This Supplier Proposal is pursuant to and subject to the Standard Marketing Services Terms and terms of the Purchase Order.

1. Organisational details

Formal Name: Trading Name: Address:

ABN:

2. Contact details

Name: Position: Phone Number: Email:

3. Personnel and experience: The names of any personnel who would be assigned to the project, and briefly their roles and responsibilities, qualifications, and other professional experience relevant to the conduct of this study

4. Services. A description of the Services to be provided.

5. Service Levels: A description of the Service levels to be met by the Service Provider in delivering the Services.

6. Pricing: Please indicate your proposed competitive pricing for this project, detailing project fees, estimated hours and other expenses etc. (Note: you may not exceed the ceiling rates shown in your profile). Pricing must be inclusive of GST.

7. Conflicts of Interest: Declaration of any conflict of interest and how any conflict of interest may be managed.

8. Insurance Details: Please detail your insurance requirements including policy number, insurer, sum insured and expiry.

9. Other: Any other relevant information.

Deed of Confidentiality

DEED OF CONFIDENTIALITY made day of 20 . BY [insert name] of [insert address] (the 'Covenantor')

IN FAVOUR OF [insert Purchaser name] (Purchaser)

Introduction

A. [Insert name and ABN of Service Provider] (the 'Service Provider') entered into an agreement with the Purchaser for the provision of marketing services, effective [ Insert date of contract] ('the Agreement').

B. The Covenantor is an employee, agent or subcontractor of the Service Provider and provides services under or in connection with the Agreement.

C. The Information to which the Covenantor will have access for the performance of Services under the Agreement is confidential.

D. The Purchaser will allow the Covenantor access to this Information provided that its confidentiality can be maintained strictly and the Covenantor has entered into this Deed in order to acknowledge the conditions under which access to the Information will be granted.

This Deed now witnesses as follows:

1. In this Deed, unless the context otherwise requires or the contrary intention appears:

(a) The singular includes the plural and vice versa and words importing a gender include other genders.

(b) Terms importing natural persons include partnerships and bodies corporate.

(c) Other grammatical forms of defined words or phrases have corresponding meanings.

(d) Where a party comprises two or more persons, the provisions of this Deed that bind that party shall bind those persons jointly and severally.

(e) “Services” means all the services which the Covenantor will be involved in providing, whether directly or indirectly, in accordance with the Agreement.

(f) “Information” means all information or data however held, stored or recorded including drawings, plans, specifications, calculations, reports, models, concepts, source codes, files, computerised data, photographic recordings, audio or audio visual recordings and any information or data made available to the Covenantor for the purposes of the Covenantor’s participation in providing the Services.

(g) A reference to a party in this Deed or any other document or agreement includes its successors and permitted assigns.

2. The Covenantor must treat as secret and confidential all Information to which the Covenantor has access or which is disclosed to the Covenantor during the course of carrying out the Services.

3. The Covenantor must only use the Information for the purposes of carrying out the Services and must not allow any other person access to the Information.

4. The Covenantor must not copy or reproduce the Information (in whole or in part) without the approval of the Purchaser and must take all necessary precautions to prevent unauthorised access to or copying of the Information by any other person.

5. The Purchaser is entitled (in addition to any entitlements to damages) to an injunction or other equitable relief with respect to any actual or threatened breach by the Covenantor of this Deed and without the need on the part of the Purchaser to prove any special damage.

6. This Deed is governed by the law of Victoria and the Covenantor submits to the exclusive jurisdiction of the courts of Victoria.

7. This Deed may only be varied by the written agreement of the Covenantor and the Purchaser.

Executed as a Deed on the date set out at the commencement of this Deed. SIGNED SEALED and DELIVERED )

by )

in the presence of: )

Witness: