[PROJECT NAME] Services Agreement [INSERT CONTRACT #]

Transcription

1 [PROJECT NAME] Services Agreement [INSERT CONTRACT #] Brisbane South PHN Ltd ACN , trading as Brisbane South PHN (BSPHN) The contractor named in Schedule 2 Contractor details (Contractor)

2 Date Parties This Agreement is entered into on the date noted on page 37 of this document. Brisbane South PHN Ltd ACN , trading as Brisbane South PHN of Level 1, Building 20, Garden City Office Park, 2404 Logan Road, Eight Mile Plains, Queensland (BSPHN) and The contractor named in Schedule 2 Contractor details (Contractor) Introduction A. BSPHN wishes to contract the Contractor to provide the Services. Schedules B. The Contractor wishes to be contracted by BSPHN to provide the Services. C. The parties wish to enter into this Agreement to record the arrangements between them. D. The terms of this Agreement follow. The following Schedules form part of this Agreement: A. Schedule 1 Rules for interpretation. B. Schedule 2 Contractor details. C. Schedule 3 Services, Deliverables, Fees and Reports. D. Schedule 4 Acceptance Criteria. E. Schedule 5 Reference Documents. Page 1

3 Contents 1. Definitions Term Context Conditions precedent Financial viability Insurance Provision of Services Services Quality Clinical Governance Procedures Hours of work Notice of non-provision of Services Reporting Obligation to provide Reports Ongoing Reports Audited financial acquittal report Reports regarding the Services Compliance Reporting Surveys Surveys Confidentiality and Privacy Deliverables Deliverables Content of Deliverables Acceptance or rejection of deliverables Review of Services Conducting the review Review meetings Review costs Confidentiality and Privacy Compliance with the DoH Agreement Compliance with the DoH Agreement Cooperation with government officials Publicity and publications Page 2

4 10.4 Amendment of the DoH Agreement Use of logos Prohibition on use of logos Damages not a sufficient remedy Representations and warranties Representations and warranties of the Contractor Representations and warranties of BSPHN Continuation Funding Funds Use of Funds for domestic travel and accommodation Bank account Unspent or misspent Funds Interest Equipment Security Disqualified Persons Obligation not to engage Disqualified Persons Initial searches Disqualified Persons Ongoing review Medical records Other Records and Accounts Fees for Services Amount Payment Previous invoices Policy and procedures Policies and procedures Standards and ethics Qualifications, licences and registrations Privacy Compliance with Privacy Act Disclosure of Personal Information gained from providing the Services Disclosure of Personal Information regarding Key Personnel Health Services, Health Information and Sensitive Information Page 3

5 24. Risk Management Proportionate liability regime Indemnity Confidentiality Non-disclosure Continuation Damages not a sufficient remedy Intellectual Property Insurance Conflict of interest Accessibility Freedom to contract Nature of the relationship Uncontrolled Events Costs Notices Form of Notices Method and address for giving Notices Notices by hand Notices by post Notices by Notices by facsimile Signatures Disputes Dispute Notice Notice in response Settlement conference Negotiations without prejudice Continued performance Arbitrator s determination Termination Termination on Notice Termination of DoH Agreement Immediate termination Effect of Termination Goods and Services Tax...34 Page 4

6 38. Governing Law Choice of law Jurisdiction Submission to jurisdiction General provisions Variations Waiver Further assurances Counterparts Parties bound Entire agreement Assignment Schedule 1 Rules for interpretation...38 Schedule 2 Contractor details...39 Schedule 3 Services, Deliverables, Fees and Reports...41 Schedule 4 Acceptance Criteria...42 Schedule 5 Reference Documents...43 Page 5

7 THE PARTIES AGREE 1. Definitions (e) (f) (g) (h) Acceptance Criteria means the criteria by which BSPHN will determine whether the Deliverables are of an acceptable standard, as set out in Schedule 4 Acceptance Criteria or as otherwise provided to the Contractor from time to time. Accounts means: Any accounts required by Law or which are otherwise generally produced in operating a business which provides the Services, or services similar to the Services. Accounts required to be kept to enable the Contractor to prepare the report required by clause 6.3. Receipts, proofs of purchase and invoices related to the spending of any Funds and any additional funding provided by BSPHN to the Contractor related to the Services. Agreement means this Agreement including all of its annexures, schedules and recitals. Arbitrator means a member of the Queensland Law Society, the Chartered Institute of Arbitrators Australia, or the Resolution Institute, to be agreed between the parties or failing agreement to be appointed on the application of either party by the president for the time being of the Queensland Law Society. The person agreed or appointed must have sufficient expertise in the areas in which the parties are in dispute. However, if any appointment is made by the president of the Queensland Law Society, then that appointment is not subject to challenge by the parties on any grounds. If the Queensland Law Society is abolished, then reference to that body will mean such other recognised professional association as may assume the role of the Queensland Law Society. Assault has the definition given to it by section 245 of the Criminal Code 1899 (Qld). Auditor-General means the office established by the Auditor-General Act 1997 (Cth). If the office of Auditor-General is abolished, then reference to that body will mean such other recognised entity or body as may assume the role or functions of the Auditor-General. Authorised Representative means, in respect of each party, a solicitor of that party or a person nominated by Notice to the other party as an authorised representative, and in respect of a party which is a corporation a company secretary or director, or any officer of the corporation whose title or office includes the words manager or director, or a person acting with the title or in the office of manager or director. Business Days means any day other than a Saturday, Sunday or public holiday in Brisbane, Queensland. Clinical Governance Procedures means procedures through which the Contractor and its Key Personnel are accountable to the community to whom the Services are provided for continually improving the quality of the Page 6

8 (j) (k) (l) (m) (n) (o) (p) (q) Services, and safe guarding high standards of care, ensuring they are patient-centred, safe and effective. Clinical Record means an accurate and timely record of the patient s disease, or observation and treatment provided in the course of clinical treatment. It is maintained on each patient in accordance with professional standards and practices Confidential Information means information received by or on behalf of the Contractor or any of its Key Personnel from BSPHN, or obtained or acquired in the course of providing the Services under this Agreement, whether such information is written or oral and if written whether it is an original or copy or in any electronic or other format whatsoever, not being information otherwise in the public area (unless BSPHN was the cause of that occurring), which is of a confidential or proprietary nature, including Personal Information, and information provided by BSPHN regarding BSPHN s business methods, software, mode of operation, advertising, profits, financial position or performance or regarding patients with whom the Contractor or its Key Personnel come in contact as a result of performing the Services. Control has the meaning given to that term by section 50AA of the Corporations Act 2001 (Cth). Commencement Date means the date stated in Schedule 2 Contractor details. Commonwealth Service Provider has the meaning given to it by section 3BA of the Ombudsman Act 1976 (Cth). Commonwealth Ombudsman means the office established by the Ombudsman Act If the office of Commonwealth Ombudsman is abolished, then reference to that body will mean such other recognised entity or body as may assume the role or functions of the Commonwealth Ombudsman. Corporation has the meaning given to it by section 57A of the Corporations Act 2001 (Cth). Deliverables means the deliverables described in Schedule 3 Services, Deliverables, Fees and Reports, including any other deliverables the parties agree on pursuant to the terms of this Agreement. (r) Dispute Notice means a Notice given under clause (s) (t) (u) (v) (w) (x) (y) Disqualified Person means a person who satisfies any one of the subclauses in clause DoH means the Commonwealth Department of Health. DoH Agreement means the Primary Health Networks Standard Funding Agreement, entered into by BSPHN and the DoH. Equipment means the equipment listed in Schedule 2 Contractor details. Fee means the fees set out in Schedule 3 Services, Deliverables, Fees and Reports. Funds means the amount listed in Schedule 2 Contractor details. Good Health Practice means the standards, methods and procedures that conform to the Law, and Page 7

9 subject to, the most up to date evidence based treatment protocols and practices generally accepted by the relevant discipline of clinical or allied health practice in Australia, as applicable, (z) (aa) and using individuals who are at all times (iv) (v) qualified and accredited in accordance with the Law appropriately supervised, skilled, trained and experienced, and have access to consumables and equipment that comply with the Law and are suitable and sufficient to perform the Services. Grievous Bodily Harm means grievous bodily harm has the definition given to it by section 1 of the Criminal Code 1899 (Qld). GST means a tax, impost or duty on goods, services or other things imposed by any fiscal, national, state, territory or local authority or entity and whether presently imposed or novel, together with interest or penalties either before or after the date of this Agreement. (bb) GST Act means A New Tax System (Goods & Services Tax) Act (cc) (dd) (ee) (ff) (gg) (hh) Health Information has the meaning given to that term by section 6FA of the Privacy Act. Health Services has the meaning given to that term by section 6FB of the Privacy Act. Hours means the minimum hours per week for which the Contractor must ensure the Key Personnel provides the Services. Independent Person means a Queensland Law Society approved mediator to be agreed between the parties or failing agreement to be appointed on the application of either party by the president for the time being of the Queensland Law Society. The person agreed or appointed must have sufficient expertise in the areas in which the parties are in dispute. However, if any appointment is made by the Queensland Law Society, then that appointment is not subject to challenge by the parties on any grounds. If the Queensland Law Society is abolished, then reference to that body will mean such other recognised professional association as may assume the role of the Queensland Law Society. Insurance means the type of insurance and the minimum cover required to be held by the Contractor, as stated in Schedule 2 Contractor details or as notified by BSPHN to the Contractor from time to time. Intellectual Property means all intellectual property owned by, registered to or developed by a party from time to time, including all intellectual property comprised in any (iv) (v) copyright trademarks patent or patent application or specification design patent or industrial design any other intellectual property, technical know-how, trade secrets, data, designs, plans, drawings, modules, formulae, processes, techniques, studies, analysis, notes, calculations, manuals, diagrams, flow charts, project plans, papers and articles, development policies, technical and operational standards, symbols, quality assurance procedures, operating and testing procedures, practices, reports, Page 8

10 (vi) (vii) conclusions, summaries or any other information relating to the Services any inventions, improvements, advances, enhancements, modifications, discoveries or ideas relating to any of the above, or any licence or other right to use or to grant the use of any of the above or to be the registered proprietor or user of any of them. Intellectual Property Rights means: Ownership rights in relation to Intellectual Property, which includes any and all proprietary rights provided under or in respect of the Intellectual Property. Ownership rights in relation to any and all applications, registrations, licences, sublicences, agreements, or any other evidence of a right in relation to Intellectual Property. (jj) Interest means interest calculated on a daily compounding basis at the 90 day bank-accepted bill rate, as available from the Reserve Bank of Australia. (kk) Key Person/ Key Personnel means the personnel listed in Schedule 2 Contractor details, or as otherwise notified to BSPHN in writing from time to time. (ll) Law means any law which applies to the Contractor or BSPHN, including any legislative act, regulation, by-law, order, award or proclamation of Australia or of the state or territory in which the Services are being provided, and guidelines, standards, codes of conduct and ethics, certificates, licences, consents, permits, approvals or requirements of highlyregarded organisations located in Australia which are relevant to the Services being provided. (mm) Medical Practitioner means a person (nn) (oo) (pp) (qq) whose primary employment role is to diagnose or treat physical or mental illnesses, disorders or injuries and prescribes medications or treatments that promote or restore good health, and who are registered with an Australia government body responsible for registering individuals whose employment activities are covered by paragraph above. Medical Record means the documents pertaining to a patient s medical history, diagnoses, therapies and status of when last seen by health care providers. Minor Record means a criminal record which includes between one and two convictions or other findings of guilt, none of which are Serious Offences. Notice means a written notice, consent, approval, direction, order or other communication. Notice Address means The following service or address Brisbane South PHN Ltd, trading as Brisbane South PHN Service address: Level 1, Building 20, Garden City Office Park, 2404 Logan Road, Eight Mile Plains QLD 4122 Page 9

11 (rr) (ss) (tt) (uu) (vv) Facsimile number: address: Attention: Contractor Contracts Manager The service and address listed in Schedule 2 Contractor details. or where a party gives Notice to all the other party of another service address or address, the last address so notified. Personal Information means information which identifies an individual, or from which an individual s identity is reasonably identifiable. Privacy Act means the Privacy Act 1988 (Cth), as amended from time to time. Prohibited Conduct means any conduct in which the Contractor or Key Personnel use their position of influence and trust to improperly influence any actions or situations. This conduct may include the following behaviour: Making of promises, offers or grants to any person. Providing undue advantages to any person. Requesting or accepting undue benefits or advantages from another person. Records means any records required by Law or which are otherwise generally produced in operating a business which provides the Services, or services similar to the Services. Reduced Funds means the Funds payable to the Contractor for the corresponding purpose as noted in Schedule 2 Contractor details, following a reduction of the amount payable to the Contractor pursuant to clause (ww) Related Party means any of the following: (xx) (yy) (iv) (v) (vi) An entity that Controls or has significant influence over the Contractor at any time. An entity that the Contractor Controls or has significant influence over at any time, including the Contractor s subsidiary. A person who is a member of the Contractor s board or governing body. A member of the board of an entity referred to in clause or above. A member of the Contractor s Key Personnel, other than in their capacity as an employee. A spouse or immediate family member of A. a member of the Contractor s Key Personnel, or B. a person specified in clause or (iv) above who is not themselves an employee of the Contractor. Reports means the reports described in Schedule 3 Services, Deliverables, Fees and Reports. Restricted Purpose means the restricted purposes are as follows: Page 10

12 (zz) (iv) (v) (vi) (vii) Paying for international travel, or expenses related to international travel. Payment of fines or penalties. Paying for legal action or proceedings, or the settlement or agreement to consent order in relation to, or to otherwise resolve, any proceedings or application for reinstatement and/or wrongful dismissal by a current or former employee. Lending or gifting the Funds, or the Equipment purchased with the Funds, to any person, Corporation or Related Party. Providing redundancy payment, advances, commission, bonuses, performance based benefits or similar benefits to any person. Paying sitting fees in relation to any person, including a member of the Contractor s board of directors, for their attendance at a meeting or involvement in the business of the Contractor. Entry into a sale and lease back arrangement. (viii) Leasing an item of property that the Contractor owns. (ix) (x) (xi) (xii) Establishing a subsidiary, or other commercial entity or activity. Paying the Contractor any fee or charge that is calculated on a basis other than the costs the Contractor actually incurs in the performance of the Services and the provision of the Deliverables. For the avoidance of doubt, the costs the Contractor actually incurs includes the proportion of any general operational overhead or expense of the Contractor that is reasonably required for, and accordingly attributable to, the Contractor s performance of the Services and the provision of the Deliverables. Purchasing a car or other vehicle. Providing for the future replacement of any asset of the Company, or to dispose of, acquire or provide for the future replacement of any land, building or other real property. Sensitive Information has the meaning given to that term by section 6 of the Privacy Act. (aaa) Serious Offence means an offence that would reasonably be considered serious, including the following: (iv) (v) An offence involving the death of a person. An offence involving the Assault or Grievous Bodily Harm of a person. A sex-related offence, including sexual assault, child pornography, or an indecent act involving a child. Fraud, money laundering, insider dealing or any other financial offence or crime, including those under legislation relating to companies, banking, insurance or other financial services. Any attempt to commit any of the offences outlined in paragraphs to (iv) above. (bbb) Serious Record means a criminal record which includes one or more convictions or other findings of guilt in relation to a Serious Offence, or more than two convictions or other finding of guilt in relation to offences other than Serious Offences. Page 11

13 (ccc) Services means the services described in Schedule 3 Services, Deliverables, Fees and Reports, including any other facilities or services the parties agree on pursuant to the terms of this Agreement. (ddd) Survey means a questionnaire, which may include multiple choice and short answer questions, distributed by BSPHN to the Contractor. (eee) Termination Date means the day stated in Schedule 2 Contractor details or such other date determined by or in accordance with clauses 2 or 36. (fff) Uncontrolled Event means an act of God, strike, lock out or other interference with work, war declared or undeclared, blockage, disturbance, lightning, fire, drought, earthquake, storm, flood, explosion, government or quasi government restraint, exploration, prohibition intervention, direction, or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi governmental approvals, consents, permits, licences, authorities or allocations, or any other cause whether of the kind specifically set out above or otherwise which is not reasonably within the control of the party relying on the Uncontrolled Event. (ggg) Vulnerable Person means any person who would reasonably be considered particularly vulnerable, including any persons under 18, and any other individual who is or may be unable to take care of themselves, or is unable to protect themselves against harm or exploitation for any reason, including A. physical illness B. mental illness C. trauma D. disability E. pregnancy F. the influence, or past or existing use, of alcohol, drugs or substances, or G. any other reason which could reasonably be considered to make a person vulnerable. (hhh) Withheld Funds means the amount of the Funds withheld by BSPHN pursuant to clause 13.4, which would have otherwise been payable to the Contractor for the corresponding purpose as noted in Schedule 2 Contractor details. 2. Term On and from the Commencement Date, the Contractor is contracted by BSPHN to provide the Services until the Termination Date. This Agreement may be extended for a further period of 14 days where both parties agree in writing prior to the Termination Date. 3. Context This Agreement is made between BSPHN and the Contractor for the performance of each of the Services specified in Schedule 3 Services, Deliverables, Fees and Reports to this Agreement. This Agreement includes all of its annexures, schedules and recitals, as they are amended or varied from time to time. Page 12

14 (e) Clauses regarding the interpretation of this Agreement are contained in Schedule 1 Rules for interpretation. In this Agreement, certain words and phrases have defined meanings. They are indicated by initial capital letters. All definitions used in this Agreement are set out in clause 1 of this Agreement. 4. Conditions precedent 4.1 Financial viability 4.2 Insurance (e) 5. Provision of Services 5.1 Services This Agreement is subject to and conditional upon BPSHN being satisfied of the financial viability of the Contractor, as required by the DoH Agreement. The Contractor must provide BSPHN with any information it reasonably requests and which BSPHN reasonably requires to determine the financial viability of the Contractor within 10 Business Days of BSPHN requesting the information. BSPHN must issue a Notice to the Contractor within 14 days of the Commencement Date stating whether it is satisfied with the financial viability of the Contractor. If BSPHN, in its sole discretion, determines the Contractor is not financially viable, then BSPHN may immediately terminate this Agreement in accordance with clause This Agreement is subject to and conditional upon BPSHN being satisfied of the adequacy of the coverage and terms of the insurance policies taken out by the Contractor. The Contractor must take out policies to provide it with the Insurance by the Commencement Date. The Contractor must provide BSPHN with any information it reasonably requests and which BSPHN reasonably requires to determine the adequacy of the policies taken out by the Contractor. BSPHN must issue a Notice to the Contractor within 14 days of the Commencement Date stating whether it is satisfied with the adequacy of the insurance policies taken out by the Contractor. If BSPHN, in its sole discretion, determines the Contractor does not hold the Insurance, then BSPHN may immediately terminate this Agreement in accordance with clause The Contractor must, at the request of BSPHN, provide the Services during the term of this Agreement. The Contractor must provide the Services through the engagement of the Key Personnel. BSPHN may, in its discretion but not acting unreasonably, vary the Services to be provided from time to time, by providing 10 Business Days Notice to the Contractor, or such other time as agreed by the parties. Page 13

15 5.2 Quality The Contractor must observe its obligations, and ensure the Key Personnel observes the Contractor s obligations, under this Agreement, including causing the Key Personnel to provide the Services (iv) in accordance with A. the highest industry standards of quality and efficiency or, if BSPHN has provided the Contractor with a higher standard, then in accordance with BSPHN s standards of quality and efficiency B. all applicable laws, regulations and codes, with Good Health Practice and with all applicable Commonwealth policies that have been notified to the Contractor and those that are publically available C. the Contractor s Clinical Governance Procedures, and D. any practice manuals, policies and procedures provided to the Contractor by BSPHN or as directed by DoH, where applicable to a high ethical standard, to support the reputation of BSPHN in a diligent and professional manner, and with the degree of care, diligence and skill that a reasonably qualified person would exercise if they were in the Contractor s position. In providing the Services pursuant to this Agreement, the Contractor must not, and must ensure the Key Personnel does not, engage in any Prohibited Conduct. 5.3 Clinical Governance Procedures 5.4 Hours of work The Contractor must develop and implement appropriate Clinical Governance Procedures and Structures (Clinical Governance Framework) for the delivery of services. The Contractor must ensure Key Personnel provide the Services in accordance with the Contractor s Clinical Governance Framework. BSPHN may from time to time audit the Contractor s Clinical Governance Procedures and Structures in respect of the Contractor s compliance under Clause 5.3. The Contractor will ensure Key Personnel provide the Services for the Hours, unless otherwise agreed by BSPHN. 5.5 Notice of non-provision of Services The Contractor must advise BSPHN as soon as possible if 6. Reporting any issue arises that may delay, stop or adversely affect the provision of the Services, or personal circumstances have arisen that prevent any of the Key Personnel from providing the Services on the Contractor s behalf. 6.1 Obligation to provide Reports The Contractor will report to the representative of BSPHN (notified from time to time to the Contractor) in accordance with this clause 6 and as and when Page 14

16 otherwise requested to do so by BSPHN, in respect of the performance of the Services. 6.2 Ongoing Reports The Contractor must provide BSPHN with all of the Reports. Each Report must contain the information requested, and be given at the times and in the manner noted in Schedule 3 Services, Deliverables, Fees and Reports. 6.3 Audited financial acquittal report Following termination of this Agreement, BSPHN may provide the Contractor with a Notice requiring the Contractor to provide BSPHN with an audited financial acquittal report in relation to the provision of the Services. The audited financial acquittal report must contain all information requested by BSPHN. The audited financial acquittal report must be provided to BSPHN within 30 days following the Termination Date. 6.4 Reports regarding the Services The Contractor must provide BSPHN with a completed declaration in relation to Services, in the form provided by BSPHN and containing the information specified in that form at each of the following times: The Termination Date. Any other time the Contractor receives a request for a declaration from BSPHN. 6.5 Compliance Reporting The Contractor must report to BSPHN within 5 Business Days of the following occurring: 7. Surveys 7.1 Surveys Any occurrence where it or its Key Personnel cease to maintain appropriate qualifications, accreditations, or memberships of professional associations. Any breach of this Agreement. Any claim made or threatened to be made against BSPHN, the Contractor, or the Key Personnel in relation to the Services. BSPHN may from time to time require the Contractor and its Key Personnel to complete a Survey. The Contractor must, at its own expense, complete and provide BSPHN with a completed Survey within 10 Business Days of receiving the Survey. The Contractor must provide, and must ensure its Key Personnel provides, full, complete and accurate responses to each of the questions contained in the Survey. 7.2 Confidentiality and Privacy The parties must treat any information disclosed to the other party pursuant to this clause 7 in accordance with clauses 23 and 25 of this Agreement. Page 15

17 8. Deliverables 8.1 Deliverables The Contractor must provide the Deliverables to BSPHN during the term of this Agreement. The Deliverables must be given at the corresponding times noted in Schedule 3 Services, Deliverables, Fees and Reports. BSPHN may, at its discretion but not acting unreasonably, vary the Deliverables to be provided from time to time, by providing 10 Business Days Notice to the Contractor, or such other time as agreed by the parties from time to time. 8.2 Content of Deliverables The Deliverables must contain the information required for the relevant Deliverable as noted in Schedule 3 Services, Deliverables, Fees and Reports, and satisfy the Acceptance Criteria. 8.3 Acceptance or rejection of deliverables Where BSPHN is of the reasonably held opinion that the Deliverable includes all of the required information, and satisfies the Acceptance Criteria, then BSPHN must provide the Contractor with a Notice stating that BSPHN accepts the Deliverable within 10 Business Days of receiving the Deliverable from the Contractor. Where BSPHN is of the reasonably held opinion that the Deliverable does not include all of the required information, or does not satisfy the Acceptance Criteria, then the Deliverable must be rectified in accordance with the following procedure: (iv) (v) BSPHN must give Notice in writing to the Contractor requiring the Contractor to rectify the Deliverable as appropriate within 10 Business Days. The Notice must A. be given to the Contractor within 10 Business Days of receipt of the Deliverable by BSPHN B. notify the Contractor of any information which has been omitted or not sufficiently detailed, in the Deliverable, and C. notify the Contractor of any Acceptance Criteria which the Deliverable does not satisfy. The Contractor must provide the rectified Deliverable to BSPHN within 10 Business Days of receiving the Notice, or within such other time as agreed by both the parties. If BSPHN is still of the reasonably held opinion that the Deliverable does not include all of the required information, or does not satisfy all of the Acceptance Criteria, then BSPHN must notify the Contractor of this by providing the Contractor with a Notice which includes the information required by clauses 8.3B and 8.3C within 10 Business Days of receiving the rectified Deliverable, and require the further rectified Deliverable be provided to BSPHN within 10 Business Days of receiving the second Notice. If the Contractor fails to provide the rectified Deliverable pursuant to clause 8.3, the further rectified Deliverable pursuant to Page 16

18 9. Review of Services 9.1 Conducting the review 8.3(iv), or if in BPSHN s reasonably held opinion the further rectified Deliverable still does not satisfy clause 8.2, then BSPHN may A. conduct a review pursuant to clause 9, or B. terminate this Agreement immediately in accordance with clause BSPHN may from time to time, by itself or by others (which may include representatives of Commonwealth bodies, including the DoH), carry out a review of the Services provided by the Key Personnel on behalf of the Contractor, and the Contractor s compliance with this Agreement. BSPHN must provide the Contractor with five Business Days notice prior to conducting a review of the Services. The Contractor must fully cooperate with BSPHN and any representatives of Commonwealth bodies (including the DoH), and ensure the Key Personnel fully cooperate with BSPHN and any representatives of Commonwealth bodies. The Contractor must, at its own expense, provide BSPHN and representatives of Commonwealth bodies (including the DoH) with all assistance necessary to conduct the review, including providing access to the following within five Business Days of notification of the review by BSPHN: 9.2 Review meetings Any premises, documents, records and facilities relevant to providing the Services. Any Key Personnel. At the request of BSPHN, the Contractor must meet to review and discuss the review undertaken by BSPHN, including the following matters: 9.3 Review costs The findings of the review. Any rectification actions required, including removal of one or more of the Key Personnel, as a result of the review. Any other matter that either party considers relevant to the review and the provision of the Services. Subject to clauses 9.3 and 9.3, BSPHN is responsible for all costs reasonably incurred in relation to the reviews undertaken in accordance with this clause 9. Unless the costs are incurred at BSPHN s direction, BSPHN will not be responsible for any costs incurred by the Contractor related to undertaking the reviews in accordance with clause 9, including the following: Professional or legal fees. Costs related to travel such as flights, accommodation and related expenses. Page 17

19 The Contractor is responsible for any costs incurred by the Contractor as a result of any changes required to be made by the Contractor as a result of a review. 9.4 Confidentiality and Privacy The parties must treat any information disclosed to the other party pursuant to this clause 9 in accordance with clauses 23 and 25 of this Agreement. 10. Compliance with the DoH Agreement 10.1 Compliance with the DoH Agreement Notwithstanding anything else in this Agreement, the Contractor acknowledges and agrees to the following: (iv) BSPHN is bound by obligations to the Commonwealth under the DoH Agreement. The Contractor must comply, and must ensure the Key Personnel complies, with all reasonable directions of BSPHN in relation to the Services, and otherwise provide all assistance necessary or desirable to enable BSPHN to comply with the DoH Agreement. The Contractor may be considered a Commonwealth Service Provider and as such may be subject to investigation under the Ombudsman Act 1976 (Cth) and may be liable for the cost of any such investigation. The Contractor must cooperate, and provide access to all relevant premises and documents and ensure its Key Personnel do likewise, with respect to those investigations. The Contractor must provide BSPHN with any information it reasonably requires to enable BSPHN to comply with its obligations under the DoH Agreement, including information regarding the Contractor and its Key Personnel s financial and non-financial viability. Where BSPHN requires the Contractor to do any act or provide any information pursuant to this clause 10.1, it will provide the Contractor with written Notice. Where BSPHN provides the Contractor with written Notice pursuant to clause 10.1, the Contractor must comply with the Notice within five Business Days, or any other such time as agreed to by both the parties Cooperation with government officials The Contractor must allow the DoH, the Auditor-General, any person appointed under Commonwealth legislation to perform information management, privacy or freedom of information functions in relation to the Australian Government, the Commonwealth Ombudsman and other persons authorised by any of those parties to (iv) access any premises at which any materials or assets related to the Services are stored, or at which the Services are undertaken interview the Key Personnel inspect and copy any material related to the Services, and access any Equipment, wherever it is located. Where practicable and where providing Notice does not pose a risk to the safety, health or well-being of any person or there is a suspected or actual breach of Law, BSPHN will provide the Contractor with five Business Days Page 18

20 Notice if the Contractor is required to cooperate with government officials pursuant to clause Publicity and publications The Contractor permits BSPHN and the DoH to publicise and report on the awarding of the Funds to the Contractor for the provision of the Services, which may include publicising and reporting the following in media releases, annual reports and on the DoH s website: (iv) Information about the Contractor and Key Personnel, including the names of the Contractor and Key Personnel. The amount of Funds provided to the Contractor. The title, location and brief description of the Services provided by the Contractor. The existence of this Agreement, and any agreement between the Contractor and the Key Personnel. The Contractor must not publish any document, make any public statement or otherwise communicate with the public in relation to the Services without the prior written approval of BSPHN. Where the Services to be provided by the Contractor include the production of a publication, the Contractor must provide BSPHN with a final copy of the publication prior to it being published, and must comply with clause 29 of this Agreement Amendment of the DoH Agreement 11. Use of logos If the DoH Agreement is amended, then BSPHN may, by Notice to the Contractor, make any amendment to this Agreement that BSPHN reasonably considers is necessary to address the amendment made to the DoH Agreement, and the amendment will be effective immediately once notified to the Contractor, or at any later time that BSPHN sets out in its Notice Prohibition on use of logos The Contractor acknowledges the DoH and BSPHN logos are protected by copyright owned by the DoH and BPSHN respectively. Except to the extent BSPHN advises the Contractor otherwise, the Contractor must not use either the DoH or BSPHN logo without the prior written consent of BSPHN Damages not a sufficient remedy The parties acknowledge and agree that damages are not a sufficient remedy for a breach of the parties obligations in relation to this clause. In relation to a breach of this clause by a party, the other party will be entitled to injunctive relief and any other remedy that is available at law, equity or under this Agreement. 12. Representations and warranties 12.1 Representations and warranties of the Contractor The Contractor represents and warrants that where the Contractor is a Corporation, it has been duly constituted, is validly existing under relevant law and has the power and authority to carry on its business as it is now being conducted it has the power to enter into and observe its obligations under this Agreement Page 19

21 (e) (f) (g) (h) (j) the Contractor and the Key Personnel have in full force and effect the authorisations and licences necessary to provide the Services and observe the Contractor s obligations under this Agreement, including the following (where relevant): Registration as a Medical Practitioner. Provider number with Medicare. Continuous compliance with the Key Personnel s continuous professional development requirements. the Contractor, and the Key Personnel, are competent and appropriately qualified to perform their obligations, including providing the Services, under this Agreement where relevant, the Contractor, and all Key Personnel, hold all qualifications required to be held by BSPHN the Contractor has, and will during the currency of this Agreement maintain, sufficient resources to fully discharge its obligations, including providing the Services, under this Agreement the Contractor s obligations under this Agreement are valid and binding and are enforceable against the Contractor in accordance with the Agreement s terms this Agreement and the arrangements under it do not cause the Contractor or the Key Personnel to contravene any constituent documents contravene any law, regulation or official directive or contractual restrictions, or be placed in a conflict of interest (or a possible conflict of interest) no fact or circumstance exists that may materially affect its ability or willingness to perform this Agreement, and all work to be carried out by the Contractor and the Key Personnel under this Agreement does not infringe any Intellectual Property Rights belonging to any third party Representations and warranties of BSPHN BSPHN represents and warrants that (e) it has been duly constituted, is validly existing under relevant law and has the power and authority to carry on its business as it is now being conducted it has the power to enter into and observe its obligations under this Agreement it has in full force and effect the authorisations and licences necessary to enter into this Agreement, observe the obligations under this Agreement, and allow them to be enforced its obligations under this Agreement are valid and binding and are enforceable against it in accordance with the Agreement s terms this Agreement and the arrangements under it do not contravene BSPHN s constituent documents or any law, regulation or official directive or contractual restrictions, and Page 20

22 (f) 12.3 Continuation 13. Funding no fact or circumstance exists that may materially affect their ability or willingness to perform this Agreement, other than facts or circumstances fully disclosed to the other parties. These representations and warranties are also taken to be made and given on each day that this Agreement continues Funds (e) (f) (g) BSPHN will provide the Contractor with the Funds. The Funds will be provided at the corresponding times noted in Schedule 2 Contractor details. The Funds may only be used for the corresponding purposes noted in Schedule 2 Contractor details. Except where agreed to by BSPHN in writing, the Contractor must not use the Funds for a Restricted Purpose. BSPHN may, in its discretion but not acting unreasonably, vary the Funds to be provided to the Contractor from time to time, by providing 10 Business Days Notice to the Contractor, or such other time as agreed by the parties. Without limiting the generality of clause 13.1(e), BSPHN may determine not to provide any of the Funds scheduled to be provided to the Contractor by providing 10 Business Days Notice to the Contractor, or such other time as agreed by the parties, where (iv) (v) BSPHN has rejected a Deliverable provided by the Contractor in accordance with clause 8.3 BSPHN, in its reasonably held opinion, considers the Services provided by the Contractor are not satisfactory following a review of the Contractor conducted pursuant to clause 9, and BSPHN, in its reasonably held opinion, is otherwise not satisfied with the Services provided by the Contractor, including where the Contractor has provided notice of non-provision of Services pursuant to clause 5.5 Funds previously provided to the Contractor are unspent or misspent, as determined by clause 13.4, or the Contractor is in breach of this Agreement, and that breach has not been rectified by the date BSPHN is scheduled to provide the Contractor with the Funds. Subject to the other clauses of this Agreement, if, after BSPHN withholds the Funds pursuant to clause 13.1(f), the Contractor demonstrates to BSPHN s reasonable satisfaction that the reason for withholding the Funds no longer applies, or has otherwise been rectified, then BSPHN may pay some or all of the Funds to the Contractor within 10 days after BSPHN is satisfied the reason for withholding the Funds no longer applies or has otherwise been rectified Use of Funds for domestic travel and accommodation Subject to clause 13.1, the Contractor may use the Funds for domestic travel and accommodation expenses that the Key Personnel incur in the course of providing the Services provided that each of the following applies: Page 21

23 13.3 Bank account BSPHN considers the travel is reasonable and necessary for the provision of the Services. The travel is taken by the most cost-effective and direct means possible. The claimed rate for any accommodation, food and drink and incidentals is equal to or lower than the lowest rate for accommodation, food and drink and incidentals that the Commissioner of Taxation has determined for the relevant financial year for the purpose of ATO Ruling TR 2004/6 (which for the 2014/15 financial year are the rates in Table 1 of Taxation Determination 2014/19 available from Receipts are obtained for the cost of travel, accommodation, food and drink and incidentals and are provided to BSPHN upon request. The Contractor must immediately deposit and hold the Funds in an Australian bank account that is controlled solely by the Contractor, and enables the tracking of the Funds (that is, the records for the account must show how the Contractor spends the Funds). The Contractor must provide BSPHN with the following details in relation to the bank account established by the Contractor for this clause 13.3: (iv) BSB Number. Name of financial Institution. Account Number. Account Name. The Contractor must notify BSPHN if any of the details in clause 13.3 change at any time during the term of this Agreement, and must provide BSPHN with the new details Unspent or misspent Funds BSPHN may request particulars and supporting documentation regarding the use of the Funds from the Contractor from time to time, to enable BSPHN to determine the following: If the Funds have been used for their corresponding purposes as noted in Schedule 2 Contractor details. If the Funds have been used for a purpose other than their corresponding purpose as noted in Schedule 2 Contractor details. If the Funds have not been wholly spent. The Contractor must provide BSPHN with all particulars and documentation requested within 10 Business Days of receiving the request. Following the receipt of the particulars and documentation pursuant to clause 13.4, or if BSPHN does not receive the requested particulars and documentation in accordance with clause 13.4, BSPHN may make any of the following determinations: The Contractor has received Funds for a purpose (being the corresponding purpose as noted in Schedule 2 Contractor details), and the Funds have not been spent, or have not been wholly spent, in relation to that purpose, which has resulted in the Contractor having unspent Funds. BSPHN has made an overpayment of Funds to the Contractor. Page 22

24 (e) 14. Interest 15. Equipment The Contractor has spent the Funds for a purpose other than A. the corresponding purpose as noted in Schedule 2 Contractor details, or B. in accordance with this Agreement. If BSPHN makes a determination pursuant to clause 13.4, then at BSPHN s discretion the Contractor must repay any unspent or misspent Funds to BSPHN within 30 days after receiving Notice from BSPHN requiring the Contractor to repay the unspent or misspent Funds the Contractor must deal with any unspent or misspent Funds as directed by BSPHN, and/or BSPHN may reduce one or more further payments of the Funds by up to the amount of the unspent or misspent Funds. Subject to the other clauses of this Agreement, if, after BSPHN exercises its discretion pursuant to clause 13.4, the Contractor demonstrates to BSPHN s reasonable satisfaction that the Contractor requires some or all of the Withheld Funds (in addition to the Reduced Funds) for the corresponding purpose for the Reduced Funds, then BSPHN may pay some or all of the Withheld Funds to the Contractor within 10 days after BSPHN is satisfied the Withheld Funds are required. Unless otherwise notified to the Contractor in writing by BSPHN, if the Contractor is required to pay an amount to BSPHN pursuant to this Agreement, and it does not pay that amount in full by the date required by the relevant clause of this Agreement, then the Contractor must pay Interest on the outstanding amount until the outstanding amount is paid in full. The Contractor acknowledges that any Interest payable under this Agreement represents a reasonable and genuine pre-estimate of loss to BSPHN. The Contractor must, upon BSPHN s request, pay any amount owed or payable to BSPHN, or which BSPHN is entitled to recover from the Contractor, under this Agreement without prejudice to any other rights available to BSPHN (whether under this Agreement or at law) as a debt due by the Contactor to BSPHN, without further proof of the debt by BSPHN being necessary. BSPHN will provide the Contractor with the Funds to purchase the Equipment. All Equipment purchased using the Funds is and will remain the property of BSPHN. As at termination of this Agreement, the Contractor must either purchase the Equipment at a depreciated price as agreed to by both parties, or return the Equipment to BSPHN. Page 23