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Service Provider Contract

Service Provider Contract 2012-2015

Table of Contents

Part 1 - Services

1 Interpretation
2 Term of the Contract
3 Scope of the Contract
4 Acknowledgement by Service Provider
5 Provision of Services
6 Trading Names
7 Transitional Matters
8 Service Provider Warranties
9 Device Supply Arrangements
10 Schedule of Approved Devices
11 Sites
12 Accreditation - False or Misleading Information
13 Payments to the Service Provider
14 Claims for Payment - False or Misleading Statements
15 Reimbursement by Service Provider
16 Taxes, Duties and Government Charges

Part 2 - Contract Administration

17 Liaison
18 Audit
19 Access to Sites and Records
20 Service Provider Access to Records
21 Freedom of Information

Part 3 - Information Privacy and Confidentiality

22 Confidential Information
23 Protection of Personal Information

Part 4 - Subcontracting

24 Subcontracting

Part 5 - Indemnity and Insurance

25 Indemnity
26 Insurance

Part 6 - Breach and Termination

27 Suspension of Services
28 Termination by ACT
29 Termination by either Party on 30 Days Notice
30 Termination by Default
31 Consequences upon Termination

Part 7 - General

32 Disclosure of Information
33 Negation of Employment, Partnership and Agency
34 Assignment, Novation and Corporate Change
35 Entire Contract
36 Waiver
37 Applicable Law
38 Cumulative Remedies
39 Compliance with Commonwealth Laws
40 Survival
41 Notices

• Schedule 1 - Schedule of Service Items

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Part 1 -Services

1 Interpretation

1.1

In this Contract, unless otherwise specified:
(a) all terms defined in the Act have the meaning given to them in the Act when used in this Contract, including:
(i) "Accreditation Scheme";

(ii) "Contracted Service Provider";

(iii) "Voucher"; and

(iv) "Voucher-holder";

(b) all terms defined in the Rules of Conduct have the meaning given to them in the Rules of Conduct when used in this Contract, including:
(i) "Letter of Authority";

(ii) "Practitioner Professional Body";

(iii) "Provisional Audiologist";

(iv) "Provisional Audiometrist";

(v) "Qualified Practitioner";

(vi) "Qualified Practitioner Number";

(vii) "Service Provider Personnel"; and

(viii) "Students";

(c) all terms defined in the Standards have the meaning given to them in the Standards when used in this Contract; and

(d) the following terms have the following meanings:


"Act" means the Hearing Services Administration Act 1997 (Cth) and any regulations, instruments (including rules and determinations) made under or for the purposes of the Act, as amended or replaced from time to time;

"Appointed Supplier" means a supplier appointed by the Commonwealth who is a party to a Deed of Standing Offer;

"Claim Form" means the claim for payment form and form of tax invoice issued by the Commonwealth from time to time which must be used by the Service Provider to claim the payment of Scheduled Fees in accordance with this Contract;

"Client" means a Voucher-holder;

"Clinical Personnel" means a Qualified Practitioner, Provisional Audiometrist, Provisional Audiologist, or Student engaged by the Service Provider to provide Services under this Contract;


"Commencement Date" means 1 July 2012; Top of Page



"Commonwealth's Contact Officer" means the contact officer nominated by the Commonwealth from time to time on its website Office of Hearing, or replacement website address determined by the Commonwealth from time to time);

"Conditions of Accreditation" means the following:
(a) conditions of accreditation as prescribed in section 18 of the Hearing Services Administration Act 1997 (Cth);

(b) conditions specified in the instrument of accreditation in relation to the Service Provider pursuant to section 16 of the Hearing Services Administration Act 1997 (Cth); and

(c) conditions imposed on the Service Provider under the Accreditation Scheme;


"Contract" means this contract between the Service Provider and the Commonwealth comprising:
(a) these terms and conditions;

(b) the Schedule of Service Items; and

(c) the Conditions of Accreditation;


"Corporate Change" in relation to a partnership, a corporation who is a partner in a partnership, a trust, a joint venture, a corporation or any other entity ("Entity"), means a change in:
(a) the Entity's directors, secretary or other person (by whatever name called and whether or not a director) who is concerned in, or takes part in, the management of the Entity (including chairperson, secretary and chief executive);

(b) the partners of an Entity which is a partnership and which has less than 10 partners;

(c) the identity of the person (natural or incorporated) who has the ability to cast or control the casting of more than 50 percent of the maximum number of votes that might be cast at any general meeting (or equivalent) of the Entity; or

(d) the identity of the person (natural or incorporated) who holds more than 50 percent of the issued ordinary share capital, the equity, or other ownership interest, in the Entity;


"Date of Service" in relation to any particular aspect of the Services means that date as defined in the Schedule of Service Items;

"Deed of Standing Offer" means any deed between the Commonwealth and a supplier under which the supplier has agreed to provide Supplies to the Service Provider;

"Device" means a device included in the Schedule of Approved Devices;

"DHS" means the Commonwealth Department of Human Services or such other Commonwealth agency which fulfils the same functions from time to time;

"GST" means the goods and services tax;

"Hearing Rehabilitation Outcomes" means the Outcomes document as defined in the Rules of Conduct; Top of Page

“Home Visit” means provision of Services to a Client at a private residence or residential aged care facility or to a Client who is an inpatient at a hospital;

"Insolvency Event" means:
(a) the Service Provider disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;

(b) the Service Provider ceases to carry on business;

(c) the Service Provider ceases to be able to pay its debts as they become due;

(d) proceedings are initiated with a view to obtaining an order for the winding up of the Service Provider, or any person convenes a meeting for the purpose of considering or passing any resolution for the winding up of the Service Provider;

(e) the Service Provider applies to come under, the Service Provider receives a notice requiring it to show cause why it should not come under, an order has been made for the purpose of placing the Service Provider under, or the Service Provider otherwise comes under one of the forms of external administration referred to in Chapter 5 of the Corporations Act 2001 (Cth) or Chapter 11 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) or equivalent provisions in State or Territory legislation in relation to incorporated associations;

(f) where the Service Provider is a natural person, the Service Provider is declared bankrupt or assigns his or her estate for the benefit of creditors;

(g) where the Service Provider is a partnership, any step is taken to dissolve that partnership; or

(h) anything analogous to an event referred to in paragraph (d), (e), (f) or (g) occurs in relation to the Service Provider;


"Non-Clinical Personnel" means Service Provider Personnel who are not Clinical Personnel;

"Office" means the Office of Hearing Services within the Department of Health and Ageing;

"Party" means the Service Provider or the Commonwealth;

"Permanent Site" means a site notified to the Commonwealth as a permanent site under clause 11.1 or a "Permanent Site" operated by the Service Provider under the Previous Contract immediately before expiry of the Previous Contract;

"Previous Contract" means the contract (if any) made pursuant to section 20 of the Hearing Services Administration Act 1997 (Cth) between the Service Provider and the Minister for Health and Ageing on behalf of the Commonwealth in force on 30 June 2012; Top of Page

"Records" means any records, information, data or documents including:
(a) any paper or other material on which there is writing or printing or on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(b) a disc, tape or other article, or any material, from which sounds, images, writings or messages are capable of being reproduced with or without the aid of any other article or device;

about Clients which the Service Provider creates or maintains for the purposes of the Rules of Conduct, this Contract or any other contract between the Service Provider and the Commonwealth made pursuant to section 20 of the Hearing Services Administration Act 1997 (Cth) (whether stored or recorded by means of a computer, or not);

"Remote Site" means a site notified to the Commonwealth as a remote site under clause 11.1 or a "Remote Site" operated by the Service Provider under the Previous Contract immediately before expiry of the Previous Contract;


"Rules of Conduct" means the rules of conduct formulated by the Minister under section 17 of the Hearing Services Administration Act 1997 (Cth), as amended or replaced from time to time;

"Schedule of Approved Devices" means the list of devices approved for the purpose of hearing rehabilitation published by the Commonwealth on its website Office of Hearing Services, or replacement website address determined by the Commonwealth from time to time) as varied by the Commonwealth from time to time;

"Schedule of Fees" means the schedule of fees for the Services published by the Commonwealth on its website Office of Hearing Services, or replacement website address determined by the Commonwealth from time to time) as varied by the Commonwealth from time to time;

"Schedule of Service Items" means schedule 1 to this Contract, as varied from time to time by the Commonwealth in accordance with clause 1.4;

"Scheduled Fees" means the prices prescribed by the Commonwealth from time to time for Services set out in the Schedule of Fees;

"Service Provider Number" means the individual identification number allocated by the Commonwealth to the Service Provider;

"Services" means hearing services as defined in the Act;

"Site" means a Permanent Site, Visiting Site or Remote Site;

"Standards" means the following documents as amended or replaced from time to time:

(a) the Hearing Rehabilitation Outcomes;

(b) the Schedule of Service Items;

(c) the Schedule of Fees;

(d) the eligibility criteria for refitting; and

(e) any new standard relating to this Contract issued by the Commonwealth under clause 4.3;

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"Supplies" means the Devices and associated services (or any part thereof) supplied under a Deed of Standing Offer. "Supplies" includes "Warranty Services" and "Support Services";

"Support Services" means the support services for Devices referred to in the Deed of Standing Offer;

"Term" means the period referred to in clause 2;

"Visiting Site" means a site notified to the Commonwealth as a visiting site under clause 11.1 or a "Visiting Site" operated by the Service Provider under the Previous Contract immediately before expiry of the Previous Contract;

"Voucher Rules" means the rules formulated by the Minister under section 11 of the Hearing Services Administration Act 1997 (Cth), as amended or replaced from time to time;

"Warranty Services" means the warranty services for Devices referred to in the Deed of Standing Offer; and

"Working Days" means all days except Saturday, Sunday and days that are declared as public holidays in either the Australian Capital Territory or the State or Territory where the Service Provider has its principal place of business.


1.2

In the event of inconsistency between the provisions of the Act, any Conditions of Accreditation and this Contract (other than the Conditions of Accreditation), the following order of priority prevails:
(a) the Act;

(b) any Conditions of Accreditation; then

(c) this Contract (other than the Conditions of Accreditation).

Note: Under subsection 20 (3) of the Hearing Services Administration Act 1997 (Cth), any Conditions of Accreditation form part of this Contract.

1.3

Subject to clause 1.4, no variation of this Contract is binding unless it is agreed in writing between the Parties.


1.4

The Commonwealth may, from time to time and at its discretion, vary the Schedule of Service Items without the agreement of the Service Provider by giving notice to the Service Provider. Before giving notice, the Commonwealth will consult with such professional, industry and consumer groups which the Commonwealth at its discretion decides to consult.

1.5

In this Contract, unless the contrary intention appears:
(a) the singular includes the plural and vice versa, and a gender includes other genders;

(b) another grammatical form of a defined word or expression has a corresponding meaning;

(c) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(e) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(f) the meaning of general words is not limited by specific examples introduced by "including", "for example" or similar expressions;

(g) a Party may, in its discretion, give conditionally or unconditionally or withhold any acceptance, approval or consent under this Contract; and

(h) headings are for ease of reference only and do not affect interpretation.Top of Page

2 Term of the Contract

2.1

This Contract will commence on the Commencement Date and will remain in force until:
(a) this Contract is terminated under clause 28 (Termination by Act), clause 29 (Termination by Either Party on 30 Days Notice) or clause 30 (Termination for Default); or

(b) this Contract expires on 30 June 2015,

whichever occurs first.

3 Scope of the Contract

3.1

This Contract sets out the terms and conditions under which the Service Provider, as an accredited service provider, is a contracted service provider within the meaning of section 20 of the Hearing Services Administration Act 1997 (Cth).

4 Acknowledgement by Service Provider

4.1

The Service Provider acknowledges and agrees that:
(a) this Contract is entered into under section 20 of the Hearing Services Administration Act 1997 (Cth);

(b) the Service Provider has read and understands, and at all times agrees to comply with, the Act and this Contract;

(c) the Service Provider is an eligible hearing service provider for the purposes of subsection 7(1) of the Privacy Act 1988 (Cth);

(d) the Commonwealth has made no representation, warranty or guarantee that any or any number of Clients will seek Services from the Service Provider;

(e) the Commonwealth may enter into agreements under section 20 of the Hearing Services Administration Act 1997 (Cth) with other Contracted Service Providers;

(a) intellectual property in all Records, and the property in any copy of the Records (in the form of a document, article or removable medium), vests or will vest in the Commonwealth;

(b) all Records and any copies of Records are Commonwealth records for the purposes of section 3 of the Archives Act 1983 (Cth); and

(c) the Service Provider must comply with all requests of the Commonwealth in relation to Records.

4.2

The Service Provider must retain Records for at least seven (7) years from the date the Record is created or, if the Record is subsequently amended, from the date of the last amendment.

4.3

The Service Provider acknowledges and agrees that the Standards may be amended, and new standards relating to this Contract may be issued, at any time by the Commonwealth:
(a) following consultation with such professional, industry and consumer groups which the Commonwealth at its discretion decides to consult; or

(b) otherwise in accordance with this Contract or the Act.

4.4

The Service Provider agrees to comply with the Standards as amended by the Commonwealth from time to time.

4.5

The Commonwealth will give written notice to the Service Provider of any new standard issued by the Commonwealth or amendments to any Standard within five (5) Working Days after issue or amendment.

5 Provision of Services

5.1

The Service Provider must:Top of Page
(a) provide Services to Clients in accordance with the Act (including the Rules of Conduct);

(b) provide Services to Clients only at Sites or Home Visits (unless otherwise agreed by the Commonwealth);

(c) ensure that Service Provider Personnel comply with the Act, this Contract and the Standards at all times;

(d) ensure that Service Provider Personnel treat Clients with respect, dignity and courtesy;

(e) provide the Services to Clients in a safe manner; and

(f) ensure that the Client is assessed and fitted in accordance with the Standards, Rules of Conduct and this Contract.

5.2

The Service Provider must ensure that it and its Service Provider Personnel:

(a) exercise due and reasonable care in connection with the provision of Services and the performance of this Contract;

(b) comply with the Act and any other relevant State, Territory or Commonwealth laws; and

(c) provide Services to Clients in accordance with professional standards and ethical practice.

5.3

In performing the Services the Service Provider must take all reasonable steps to ensure that no injury or damage is caused to persons or to property arising out of or in connection with the provision of the Services by the Service Provider or Service Provider Personnel.

5.4

The Commonwealth may at any time request the Service Provider to remove any of the Service Provider Personnel from work in respect of the provision of Services to Clients. The Service Provider must promptly arrange for the removal of such Service Provider Personnel.

6 Trading Names

6.1

In providing the Services the Service Provider must not:
(a) carry on business under this Contract under more than one trading name or business name per State or Territory unless prior written approval is given by the Commonwealth, such approval not to be unreasonably withheld;

(b) carry on business under this Contract under the trading name or business name of another Contracted Service Provider; or

(c) carry on business under this Contract under a trading or business name without a legal right to use that name and without supplying documentary proof of that right to the Commonwealth upon request.

7 Transitional Matters

7.1

Entry into this Contract does not constitute a waiver of any breach of the Previous Contract.

7.2

For the avoidance of doubt, despite clause 2.2 of the Previous Contract, the Previous Contract expired on 30 June 2012.

7.3

However, clauses 4.1(f), 4.1(g), 16, 17, 18, 20.2, 21, 23, 24, 26, 28 and 29 of the Previous Contract and clauses 1(a), 1(b) and 9 of the Business Rules (as defined in the Previous Contract) survive the expiry of the Previous Contract.

7.4

The Service Provider acknowledges and agrees that:
(a) for the avoidance of doubt, the Service Provider must not claim payment under both this Contract and the Previous Contract for the same Service; and

(b) despite the expiry of the Previous Contract, the Commonwealth remains entitled to recover from the Service Provider any amount owing in accordance with the Previous Contract, including by requiring the Service Provider to reimburse the Commonwealth in accordance with clauses 16.10, 17.5 and 18 of the Previous Contract and clause 9 of the Business Rules (as defined in the Previous Contract).Top of Page

7.5

Where the Service Provider commenced Services under the Previous Contract, it must complete those Services and:
(a) where the Date of Service for any Services commenced under the Previous Contract falls before the commencement of this Contract, the Service Provider must provide the Services in accordance with the terms and conditions of, and standards applicable to, the Previous Contract;

(b) where the Date of Service for any Services commenced under the Previous Contract falls within the Term, the Service Provider must provide the Services in accordance with the terms and conditions of, and Standards applicable to, this Contract; and

(c) where the Date of Service for any Services commenced under the Previous Contract falls before the commencement of this Contract and the Client requires further Services as a direct consequence of the Services to which the Date of Service relates, the Service Provider must provide the further Services in accordance with the terms and conditions of, and Standards applicable to, this Contract, except to the extent the Commonwealth notifies the Service Provider that it must provide the further Services in accordance with the terms and conditions of, and Standards applicable to, the Previous Contract.


8 Service Provider Warranties

8.1

The Service Provider warrants that:
(a) it will exercise skill, care and diligence in providing the Services;

(b) it will ensure that the Services meet their purpose, are complete and are performed in a manner that achieves all standards of performance included in or referred to in this Contract;

(c) the Service Provider has, and will continue to have, Service Provider Personnel with the skills, qualifications and experience to provide the Services in an efficient and controlled manner and to a standard that at a minimum complies with this Contract and the Act;

(d) all information that has been, or will be, provided to the Commonwealth, is or will be, correct, complete and not misleading in any respect; and

(e) the Sites meet industry standards for provision of Services.

8.2

The Service Provider warrants that:
(a) it has the power and authority to enter into this Contract;

(b) the person whose signature on behalf of the Service Provider appears below is duly authorised to execute this Contract on behalf of the Service Provider;

(c) it has not breached any terms of the Previous Contract or any other contract between the Service Provider and the Commonwealth made pursuant to section 20 of the Hearing Services Administration Act 1997 (Cth);

(d) if the Service Provider is a trustee, it enters this Contract personally and in its capacity as trustee and has the power to perform its obligations under this Contract; and

(e) the Service Provider’s signing, delivery and performance of this Contract does not constitute:

(i) a violation of any judgement, order or decree;

(ii) a material default under any contract which relates in any way to the performance of obligations under this Contract by which it or any of its assets are bound; or

(iii) an event that would, with notice or lapse of time, or both, constitute such a default.

8.3

The Service Provider warrants that:Top of Page
(a) the Service Provider will not use the Service Provider Number in making claims for payment for Services unless the Services were provided by Clinical Personnel in accordance with this Contract; and

(b) the Service Provider will not allow a person who is not the Service Provider (or Service Provider Personnel acting on behalf of the Service Provider) to use the Service Provider Number.

8.4

The Service Provider acknowledges that the Commonwealth, in entering into this Contract, is relying on the warranties and representations contained in this Contract and the representations referred to in Recital C.

9 Device Supply Arrangements

9.1

The Service Provider may at any time seek the provision of Supplies from an Appointed Supplier in accordance with the Deed of Standing Offer.

9.2

The Service Provider agrees to comply with the terms and conditions of the Deed of Standing Offer.




10 Schedule of Approved Devices

10.1

The Commonwealth will update the Schedule of Approved Devices at the end of each month.

10.2The Service Provider will regularly review the updated Schedule of Approved Devices.

11 Sites

11.1

The Service Provider must notify the Commonwealth in writing when it opens a site to provide Services to Clients. The notice must specify whether the Site is a Permanent Site, Remote Site or Visiting Site.

11.2

The Service Provider must notify the Commonwealth at least ten (10) Working Days in advance if:
(a) it will cease to provide Services at a Site;

(b) any of its Permanent Sites will not be available for Services for a period of more than ten (10) Working Days; or

(c) there will be a change to any details it has provided to the Commonwealth about a Site.

11.3

The Service Provider must notify Clients that normally receive Services at a Site in writing when it ceases to provide Services at the Site, including providing Clients with such information as required by the Commonwealth.

11.4

A Service Provider must have at least one open Permanent Site.

11.5

The Commonwealth will:
(a) issue an identification number for each Site; and

(b) maintain a list of Sites on its website Office of Hearing Services, or replacement website address determined by the Commonwealth from time to time).

11.6

The Service Provider must, for each of its Sites:
(a) ensure the Site has appropriate facilities, including audiometric testing equipment for assessment, fitting and rehabilitation;

(b) ensure the audiometric testing equipment is suitable for providing the Services;

(c) ensure the Site is fully accessible for people with disabilities;

(d) ensure that consulting and test rooms meet the required ambient noise levels in accordance with Australian Standard AS 1269.4:2005 (as amended or replaced from time to time); and

(e) ensure the audiometric testing equipment at the Site is calibrated in accordance with Australian Standard AS 1269.4:2005 (as amended or replaced from time to time).Top of Page

11.7

The Service Provider must ensure that, at each of its Permanent Sites:
(a) the full range of Services are available; and

(b) the Hearing Services Rights and Responsibilities poster supplied by the Office from time to time is displayed.

11.8

The Service Provider must maintain records and evidence that each of its Sites satisfies the requirements applicable to the Site as set out in this clause 11.

11.9

The Service Provider acknowledges that the Commonwealth may request the Service Provider at any time to certify in writing, and provide evidence, that a Site satisfies all of the requirements applicable to the Site as set out in this clause 11. The Service Provider must submit the certification and evidence to the Commonwealth within ten (10) Working Days after the request.

12 Accreditation – False or Misleading Information

12.1

Where at any time the Commonwealth considers that the Service Provider may have given the Commonwealth false or misleading information in relation to its accreditation under the Act or entry into this Contract that may be relevant to the Commonwealth's decision to accredit the Service Provider or to enter into this Contract, the Commonwealth may:
(a) conduct an investigation; and

(b) if satisfied that the Service Provider gave the Commonwealth false or misleading information in relation to its accreditation or entry into this Contract and that the information was relevant to the Commonwealth's decision to accredit the Service Provider or to enter into this Contract, terminate this Contract under clause 30 and remove the Service Provider from any list of Contracted Service Providers maintained by the Commonwealth.

13 Payments to the Service Provider

13.1

The Service Provider must not make claims for payment of Scheduled Fees under this Contract unless the Service Provider complies with this Contract (including the Schedule of Service Items) in making such claims.

13.2

The Service Provider must submit a completed Claim Form to DHS in order to receive payment for Services that the Service Provider has provided to Clients. All Claim Forms must be submitted electronically to DHS unless a Claim Form is lodged in accordance with clause 13.6 or 13.7.

13.3

Where a Client relocates from the Service Provider to another Contracted Service Provider, the Service Provider must submit to DHS all outstanding Claim Forms in relation to that Client within twenty (20) Working Days of receiving a request for the Records in relation to the Client from the other Contracted Service Provider.

13.4The Service Provider must not submit a Claim Form to DHS unless:

(a) the Client or the Commonwealth provided to the Service Provider a Voucher that is valid in accordance with the Voucher Rules, or a Letter of Authority, in relation to the Services appearing upon the Claim Form;

(b) the Services appearing upon the Claim Form were provided in accordance with the Schedule of Service Items and otherwise in accordance with this Contract;

(c) the Services appearing on the Claim Form correspond to an item in the Schedule of Service Items;

(d) any Services provided to a Client under a Voucher have not already been provided under that same Voucher for:

(i) assessment or reassessment items as specified in the Schedule of Service Items; or

(ii) fitting or refitting items as specified in the Schedule of Service Items; and

(e) the Client who received the Services appearing upon the Claim Form has certified in writing either that the Client received those Services or that the Client has entered into a maintenance agreement with the Service Provider.Top of Page

13.5

Where a Service Provider cannot obtain a Client’s signature due to exceptional circumstances, the Commonwealth may accept the signature of the Client’s representative as satisfying clause 13.4(e) if:
(a) the relationship between the Client and representative is specified on the Claim Form; and

(b) the relationship between the Client and representative is noted in the Records in relation to the Client.

13.6

Subject to clause 13.7, where the Service Provider cannot obtain a Client’s signature or the Client’s representative's signature with respect to a Claim Form, the Service Provider must submit the Claim Form in hardcopy to the Commonwealth for payment approval.

13.7

Where:
(a) the Standards direct the Service Provider to submit a Claim Form in a manner different to that in clause 13.2; or

(b) the Commonwealth otherwise directs the Service Provider to submit a Claim Form in a manner different to that in clause 13.2 or 13.6,

the Service Provider must submit the Claim Form in the manner directed.

13.8

The Commonwealth must not pay the Service Provider unless the Service Provider has submitted a Claim Form for a fee amount owing in accordance with clause 13.2, 13.6 or 13.7 and unless:
(a) the Claim Form is correctly completed and signed;

(b) the Claim Form shows the Qualified Practitioner Number of the Qualified Practitioner who provided Services, or supervised Services provided in accordance with the Rules of Conduct, to the Client who is the subject of the Claim Form;

(c) the Services appearing on the Claim Form correspond to an item in the Schedule of Service Items;

(d) the fee amount owing is equal to the corresponding item in the Schedule of Fees for the particular Service provided to the Client; and

(e) the fee amount owing is paid to an account that the Service Provider has established in its name.

13.9

For avoidance of doubt, the Commonwealth is not required to pay the Service Provider for Services in relation to a person if the Service Provider does not confirm before providing the Services that the person is a Voucher-holder and that any Services required by the person have not already been provided under the Voucher.

13.10

The Commonwealth is not required to pay the Service Provider for any amount owing that appears on a Claim Form which the Commonwealth receives more than thirty days (30) after the expiration or termination of this Contract.

13.11

The Service Provider must ensure that business systems are implemented at Sites to ensure that a Qualified Practitioner does not make a claim for payment under this Contract unless the Qualified Practitioner is, or is acting on behalf of, the Service Provider.

13.12

The Service Provider must retain all original Claim Forms submitted to the Commonwealth or DHS for a period of seven (7) years whether or not those Claim Forms were submitted electronically or in hard copy format. For the avoidance of doubt, the Records in relation to a Client include all Claim Forms submitted to DHS with respect to Services provided to that Client.

13.13

The Service Provider agrees that a payment made to the Service Provider by DHS with respect to a Claim Form is a payment made on behalf of the Commonwealth under this Contract.Top of Page

14 Claims for Payment – False or Misleading Statements

14.1

The Service Provider must not provide the Commonwealth with false or misleading information.

14.2

The Service Provider must not omit to inform the Commonwealth of a matter that is material to this Contract.

14.3

In making a claim for payment under this Contract, the Service Provider must comply with this clause 14 at all times.

14.4

The Service Provider accepts that all payments made to the Service Provider by the Commonwealth under this Contract for Services that have been or have purportedly been provided to Clients by Service Provider Personnel are subject to the following conditions:
(a) that a false or misleading statement has not been made by or on behalf of the Service Provider in connection with a claim for payment; and

(b) that the Service Provider has not omitted to inform the Commonwealth of a matter that is material to this Contract.

14.5

If the Service Provider breaches a condition referred to in clause 14.4, the Service Provider must repay to the Commonwealth any payments made to the Service Provider which are connected with the breach. If no payment has been made by the Commonwealth, the Commonwealth is not required to make any payments to the Service Provider for any claims for payment which are connected with the breach.

14.6

The Service Provider must ensure that:
(a) no false or misleading information is included on the Claim Form for payment for Services; and

(b) any Claim Form does not omit any information without which the claim for payment is misleading in a material matter.

14.7

The Service Provider must ensure that it is never in possession of, and never facilitates completion of, Claim Forms where the certification on the Claim Form by the Client or the Service Provider for the Services provided precedes the provision of Services (except in the case of a claim for maintenance Services) or is not identical to the Services that were actually provided.

14.8

The Service Provider must ensure that it is never in possession of, and never facilitates completion of, Claim Forms which have been certified by the Client, the Qualified Practitioner or the Service Provider where no Service is recorded on the Claim Form.

14.9

The Service Provider must ensure that information contained on any Claim Form lodged by electronic means is identical to the information contained on the paper Claim Form for that Service which was certified by the Client and the Service Provider.

14.10

The Service Provider must ensure that all Records are accurate and contain no false or misleading statements with respect to the provision of Services to Clients.Top of Page

15 Reimbursement by Service Provider

15.1

Where the Service Provider has received payment from the Commonwealth for Services that were not provided in accordance with the Act (including the Rules of Conduct), this Contract or the Standards, the Commonwealth may require the Service Provider to reimburse the Commonwealth the amount of the payment.

15.2

Any reimbursement under this clause 15 must be made by the Service Provider within thirty (30) days of a request by the Commonwealth.

15.3

If the Service Provider does not make a reimbursement in accordance with this clause 15, the amount will become a debt due and payable to the Commonwealth and may be deducted from any amounts due to a Service Provider under this Contract.

16 Taxes, Duties and Government Charges

16.1

Except as provided by this clause 16, all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this Contract will be borne by the Service Provider.

16.2

The Scheduled Fees payable to the Service Provider under this Contract ("the Original Scheduled Fees Payable") include an amount when applicable to cover the liability of the Service Provider for GST on any supplies made under this Contract which are taxable supplies within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("the GST Act").

16.3

The Service Provider agrees that the Original Scheduled Fee Payable will be reduced where there is a reduction in or removal of taxes, duties or charges which impacts on the costs to the Service Provider in performing the Services, so that the benefit of that reduction or removal is passed on to the Commonwealth. If a reduction to the Original Scheduled Fee Payable is made under this clause 16.3, the reduced amount will become the Original Scheduled Fee Payable for the purposes of this Contract.

16.4

In relation to taxable supplies made under this Contract, the Service Provider agrees to issue the Commonwealth with a tax invoice in accordance with the GST Act.Top of Page

Part 2 - Contract Administration

17 Liaison

17.1

If the Service Provider wants to discuss any aspect of the Services or this Contract with the Commonwealth, it must do so by contacting the Commonwealth's Contact Officer.

17.2

The Service Provider will liaise with and report to the Commonwealth as reasonably required by the Commonwealth during the Term.

17.3

The Service Provider will provide the Office with an email address by which it can be contacted and agrees to receive information from the Commonwealth electronically. It is the Service Provider’s responsibility to ensure that the email address is current.

17.4The Service Provider may nominate in writing from time to time an authorised representative who has authority to receive and sign notices and written communications for the Service Provider under this Contract and accept any request or direction in relation to the Services provided under this Contract.

17.5The Service Provider is fully responsible for the performance of the Services and this Contract and will not be relieved of that responsibility because of any involvement by the Commonwealth in the performance of the Services or this Contract, or any payment made to the Service Provider on account of the Services.




18 Audit

18.1

Audit activities may be conducted of:
(a) the Service Provider’s practices and procedures as they relate to this Contract;

(b) the compliance of the Service Provider’s claims for payment under this Contract;

(c) the Service Provider’s compliance with its obligations under this Contract;

(d) the Service Provider’s compliance with its confidentiality and privacy obligations under this Contract;

(e) the compliance of the Records with the Service Provider's obligations under this Contract; and

(f) any other matters determined by the Commonwealth to be relevant to the performance of the Service Provider’s obligations under this Contract.

18.2

The Service Provider must participate in audit activities as required by the Commonwealth at the frequency and in relation to the matters specified by the Commonwealth (including on an ad hoc basis if requested by the Commonwealth) for the purpose of ensuring that this Contract is being properly performed and administered.

18.3

The Commonwealth may appoint an independent person to assist in the audit activities.

18.4

The Service Provider must participate promptly and cooperatively in any audit activities conducted by the Commonwealth or its nominee. In particular, the Service Provider must:
(a) provide, and ensure that each of its Service Provider Personnel provide, all reasonable assistance to the Commonwealth and its nominees; and

(b) arrange for the Commonwealth to interview Service Provider Personnel.

18.5

Except for those circumstances in which notice is not practicable or appropriate (eg. caused by a regulatory request with shorter notice or investigation of fraud or serious breach of contract), and without limiting any other right, recourse or remedy of the Commonwealth, the Service Provider will be given reasonable notice of an audit activity to take place at a Site.

18.6

Except as provided at clause 19.5, each Party must bear its own costs of any audit activities.

18.7

Subject to clauses 19.10 and 19.11, the requirement for, and participation in audit activities, does not in any way reduce the Service Provider’s responsibility to perform its obligations in accordance with this Contract.

18.8

Without limiting any other rights or remedies the Commonwealth may have arising out of or in connection with this Contract, the Commonwealth must use reasonable endeavours to ensure that audit activities do not unreasonably delay or disrupt in any material respect the Service Provider’s performance of its obligations under this Contract.

18.9

The Service Provider must promptly take, without cost to the Commonwealth, corrective action to rectify any error, non-compliance or inaccuracy identified in any activity auditing the way the Service Provider has supplied any Services, claimed any fees or undertaken any activities under this Contract.

19 Access to Sites and Records

19.1

For the purpose of clause 18 and this clause 19 the Service Provider must ensure that the Commonwealth and its nominees, or the Auditor-General, the Commonwealth Ombudsman, the Information Commissioner, the Privacy Commissioner or the Freedom of Information Commissioner, is granted access as required by the Commonwealth to: Top of Page
(a) the Sites and any other premises that the Service Provider occupies, possesses or controls; and

(b) working documents and any other documents, data, records, accounts and other financial material or non-financial material (including Claim Forms, diaries and appointment schedules and Records) relevant to the performance of this Contract, the Previous Contract or any other contract between the Service Provider and the Commonwealth made pursuant to section 20 of the Hearing Services Administration Act 1997 (Cth), however and wherever stored or located, under the Service Provider’s or the Service Provider Personnel’s custody, possession or control for inspection, copying and or temporary possession.

19.2

Where reasonable notice has been given of an audit activity to take place at a Permanent Site, the Service Provider must ensure the attendance of a Qualified Practitioner who is able to assist persons engaged in the audit activity with any inquiries they might reasonably make.

19.3

The Commonwealth or its nominee may request that any documents referred to in clause 19.1(b) be forwarded to it prior to, during or after any audit activity conducted at a Site or prior to, during or after any file review or other audit activity conducted away from a Site. The Service Provider must comply with a request to forward documents by providing those documents to the Commonwealth within seven (7) Working Days of the request.

19.4

The Commonwealth will return original Records obtained under clause 19.3 to the Service Provider as soon as practicable.

19.5

In the case of documents or records (however stored) the Service Provider must make available on request at no cost to the Commonwealth such reasonable facilities as may be necessary to enable a legible reproduction to be created.

19.6

Without limiting any other provision of this Contract, the Auditor-General, the Commonwealth Ombudsman, the Information Commissioner, the Privacy Commissioner, the Freedom of Information Commissioner or any of their delegates, for the purpose of performing statutory functions or powers, may, at reasonable times:
(a) access the Sites and other premises of the Service Provider;

(b) require the provision by the Service Provider or Service Provider Personnel of records or other information which are related to this Contract; and

(c) access, inspect and copy documentation and records or any other matter relevant to the Service Provider’s obligations or performance of this Contract, however stored, in the custody or under the control of the Service Provider or Service Provider Personnel.

19.7

The Service Provider must ensure that any subcontract entered into for the purpose of this Contract contains an equivalent clause granting the rights specified in clauses 18 and 19 with respect to the subcontractor's premises, data, records, accounts, financial material and information and those of its employees, agents or subcontractors.

19.8

This clause 19 applies for the Term and for a period of 7 years from the date of its expiration or termination.

19.9

In the exercise of the general rights granted under this clause 19 the Commonwealth must use reasonable endeavours not to interfere unreasonably with the Service Provider’s performance under this Contract in any material respect.

19.10

If, in exercising the rights granted under clause 18 or this clause 19, the Commonwealth unreasonably interferes with the Service Provider’s performance of its obligations under this Contract in a material respect and that interference substantially delays the Service Provider in performing its obligations, the Service Provider may request an extension of time to perform its obligations.Top of Page

19.11

In no circumstances will any extension of time pursuant to clause 19.10 exceed the amount of any delay directly arising from the exercise of the rights.

19.12

Without limiting any of its other obligations under this Contract, the Service Provider must, at its cost, ensure that it keeps full and complete records and that data, information and records relating to this Contract or its performance are maintained in such a form and manner as to facilitate access and inspection under clause 18 and this clause 19.

19.13

Nothing in this Contract reduces, limits or restricts in any way any function, power, right or entitlement of the Auditor-General, the Commonwealth Ombudsman, the Information Commissioner, the Privacy Commissioner, the Freedom of Information Commissioner or any of their delegates. The rights of the Commonwealth under this Contract are in addition to any other power, right or entitlement of the Auditor-General, the Commonwealth Ombudsman, the Information Commissioner, the Privacy Commissioner, the Freedom of Information Commissioner or any of their delegates.

20 Service Provider Access to Records

20.1

The Commonwealth will give the Service Provider reasonable access to any Records held by the Commonwealth under this Contract:
(a) if the Service Provider gives the Commonwealth thirty (30) days notice in writing requesting such access; and

(b) where the Service Provider requires temporary possession of any original Records, it has given evidence satisfactory to the Commonwealth that it is reasonably necessary for it to have possession of these Records.

20.2

Access to Records under this clause 20 entitles the Service Provider to:
(a) inspect, copy and take temporary possession of the Records; and

(b) use the Records,

only for the purpose of providing Services to the Client to whom the Records relate.


20.3

The Commonwealth’s obligations under clause 20.1 are subject at all times to the Act, the Privacy Act 1988 (Cth), and the consent of the relevant Client.

20.4

All original Records provided by the Commonwealth to the Service Provider under this clause 20 must be returned immediately to the Commonwealth after the reason for possession being granted to the Service Provider has passed or upon written demand.

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21 Freedom of Information

21.1

The Service Provider acknowledges that it may be a 'contracted service provider' within the meaning of the Freedom of Information Act 1982 (Cth) ("FOI Act").

21.2

Without limiting any other provision of this Contract, where the Commonwealth receives a request under the FOI Act for access to a document that:
(a) is created by, or is in the possession of, the Service Provider or any subcontractor; and

(b) relates to the performance of this Contract,

the Service Provider must provide the document to the Commonwealth on request, within the time specified by the Commonwealth.

21.3

The Service Provider must ensure that any subcontract entered into for the purposes of fulfilling its obligations under this Contract imposes on the subcontractor the same obligations as the Service Provider has under this clause 21, including the requirement in relation to subcontracts.

Part 3 – Information Privacy And Confidentiality

22 Confidential Information

22.1

Subject to clause 22.2, the Service Provider must not disclose Records without prior approval in writing from the Commonwealth.

22.2

Subject to its privacy obligations (including under clause 23), the Service Provider may disclose Records to a person who has a need to know the information for the purposes of the Service Provider performing the Services.

22.3

The Commonwealth may impose any conditions it considers appropriate when giving its approval under clause 22.1 and the Service Provider agrees to comply with those conditions.

22.4

The Service Provider must not, and must ensure that Service Provider Personnel do not, take Records or allow Records to be taken outside of Australia, without the Commonwealth's prior written consent.

22.5

The Commonwealth may at any time by notice in writing to the Service Provider require the Service Provider to give, and to arrange for Service Provider Personnel to give, written undertakings, in a form required by the Commonwealth, relating to the non-disclosure of Records.

22.6

If the Service Provider receives a request under clause 22.5, it must promptly arrange for all such undertakings to be given.

22.7

The obligations on the Service Provider under this clause 22 will not be taken to have been breached where the information referred to is required by law to be disclosed.

22.8

The Commonwealth gives no undertaking to treat the Service Provider's information, or this Contract, as confidential.

22.9

Nothing in this clause 22 derogates from any obligation which the Service Provider may have either under the Privacy Act 1988 (Cth) as amended from time to time, or under this Contract, in relation to the protection of personal information.Top of Page

23 Protection of Personal Information

23.1

This clause 23 applies only where the Service Provider deals with personal information when, and for the purpose of, providing the Services under this Contract.

23.2

In this clause 23, the terms ‘agency’, ‘approved privacy code’ ("APC"), ‘contracted service provider’, ‘Information Privacy Principles’ ("IPPs"), ‘National Privacy Principles’ ("NPPs") and 'personal information' have the same meaning as they have in section 6 of the Privacy Act 1988 (Cth) ("Privacy Act") and ‘subcontract’ and other grammatical forms of that word have the meaning given in subsection 95B (4) of the Privacy Act.

23.3

The Service Provider acknowledges that it may be treated as a ‘contracted service provider’ and agrees in respect of the provision of the Services under this Contract:
(a) to use or disclose personal information obtained during the course of providing the Services under this Contract, only for the purposes of this Contract;

(b) not to do any act or engage in any practice which if done or engaged in by an agency, would be a breach of an IPP;

(c) to carry out and discharge the obligations contained in the IPPs as if it were an agency;

(d) to notify individuals whose personal information the Service Provider holds, that complaints about acts or practices of the Service Provider may be investigated by the Information Commissioner, the Privacy Commissioner or the Freedom of Information Commissioner who have power to award compensation against the Service Provider in appropriate circumstances;

(e) not to use or disclose personal information or engage in an act or practice that would breach section 16F (direct marketing) of the Privacy Act, an NPP (particularly NPPS 7 to 10) or an APC where that section, NPP or APC is applicable to the Service Provider, unless:

(i) in the case of section 16F, the use or disclosure is necessary, directly or indirectly, to discharge an obligation under this Contract; or

(ii) in the case of an NPP or an APC, where the activity or practice is engaged in for the purpose of discharging, directly or indirectly, an obligation under this Contract, and the activity or practice which is authorised by this Contract is inconsistent with the NPP or APC;

(f) to comply with any request under section 95C of the Privacy Act (relating to disclosure of any provisions of this Contract (if any) that are inconsistent with an NPP or an APC binding on a Party);

(g) to immediately notify the Commonwealth if the Service Provider becomes aware of a breach or possible breach of any of the obligations contained in, or referred to in, this clause 23, whether by the Service Provider or any subcontractor;

(h) to comply with any directions, guidelines, determinations or recommendations of the Information Commissioner, the Privacy Commissioner or the Freedom of Information Commissioner to the extent that they are consistent with the requirements of this clause 23; and

(i) to ensure that any Service Provider Personnel who are required to deal with personal information for the purposes of this Contract are made aware of the obligations of the Service Provider set out in this clause 23.Top of Page

23.4

The Service Provider agrees to ensure that any subcontract entered into for the purpose of fulfilling its obligations under this Contract imposes on the subcontractor the same obligations as the Service Provider has under this clause 23, including the requirement in relation to subcontracts.

23.5

The Commonwealth may at any time require the Service Provider to give, and to arrange for Service Provider Personnel engaged in the performance of the Services to give, undertakings in writing in a form required by the Commonwealth, relating to the non-disclosure of personal information.

23.6

If the Service Provider receives a request under clause 23.5, it agrees to promptly arrange for all such undertakings to be given.

23.7

The Service Provider agrees to indemnify the Commonwealth in respect of any loss, liability or expense suffered or incurred by the Commonwealth which arises directly or indirectly from a breach of any of the obligations of the Service Provider under this clause 23, or a subcontractor under the subcontract provisions referred to in clause 23.4.

23.8

The Service Provider’s obligations under this clause 23 are in addition to, and do not restrict, any obligations it may have under the Privacy Act or any privacy codes or privacy principles contained in, authorised by or registered under any law including any such privacy codes or principles that would apply to the Service Provider but for the application of this clause 23.

Part 4 – Subcontracting

24 Subcontracting

24.1

The Service Provider may subcontract the whole or any part of the Services or performance of this Contract.

24.2

If the Service Provider subcontracts the whole or any part of the Services or performance of this Contract, it must ensure that the subcontractor complies with all requirements of the Act, this Contract and the Standards.

24.3

The Service Provider remains fully responsible for the performance of the Services and this Contract notwithstanding that the Service Provider has subcontracted the whole or any part of the Services or performance of this Contract.

Part 5 - Indemnity and Insurance

25 Indemnity

25.1

The Service Provider must at all times indemnify the Commonwealth, its officers, employees and agents ("Those Indemnified") from and against all loss, liability, damages, costs and expenses (including legal costs and expenses on a solicitor and own client basis) incurred by any of Those Indemnified where such loss, liability, damage, cost and expense was caused or contributed to in any way by any wilfully wrongful, unlawful or negligent act or omission, or breach of this Contract, by the Service Provider or its Service Provider Personnel in providing the Services or otherwise in connection with this Contract.

25.2

The Service Provider agrees that the Commonwealth may enforce the indemnity in favour of Those Indemnified for the benefit of each of such persons in the name of the Commonwealth or of such persons.

25.3

The right of the Commonwealth to be indemnified under this clause 25:
(a) is in addition to, and not exclusive of, any other right, power or remedy provided by law; and

(b) does not entitle the Commonwealth to be compensated in excess of the amount of the relevant liability, loss, damage, or expense.Top of Page

25.4

The Service Provider's indemnity in this clause 25 will be reduced to the extent that the loss, cost, expense or liability is directly caused by the Commonwealth, its officers, employees or contractors (except the Service Provider), as substantiated by the Service Provider.




26 Insurance

26.1

The Service Provider must, at its own expense, effect and maintain for the Term (and in the case of professional indemnity insurance, for at least seven (7) years after the expiry or termination of this Contract) with an insurance company:
(a) public liability insurance for no less than $10 million per claim;

(b) workers' compensation insurance as required by law; and

(c) professional indemnity insurance for no less than $1 million per claim.

26.2

The Service Provider must ensure that each Clinical Personnel who is a Qualified Practitioner is separately covered by a professional indemnity insurance policy in the amount specified in clause 26.1(c).

26.3

The Service Provider must, if requested by the Commonwealth, provide evidence that is acceptable to the Commonwealth of the insurance and its currency within ten (10) Working Days of the request.

Part 6 - Breach and Termination

27 Suspension of Services

27.1

Without limiting any other rights or remedies the Commonwealth may have arising out of or in connection with this Contract, if:
(a) the Commonwealth suspects, acting reasonably, that the Service Provider has breached this Contract when providing Services to Clients; or

(b) an Insolvency Event occurs,

the Commonwealth may, at any time and in its discretion, by notice setting out the Commonwealth's reasons ("Suspension Notice"), direct the Service Provider to stop providing all or a specified part of the Services to Clients, with effect from the date of the Suspension Notice or a later date specified in the Suspension Notice.

27.2

If the Commonwealth gives the Service Provider a Suspension Notice, the Service Provider must stop providing Services to Clients as set out in the Suspension Notice until the Commonwealth notifies the Service Provider that it is satisfied, based on its own enquiries or information provided by the Service Provider, that:
(a) if the Suspension Notice is given under clause 27.1(a), there was no breach; or

(b) if the Suspension Notice is given under clause 27.1(b), the Insolvency Event will not have an adverse effect on the Service Provider's ability to perform any of its obligations under this Contract.

27.3

The Commonwealth will not be liable to pay compensation or damages in respect of a suspension under this clause 27. Top of Page

28 Termination by ACT

28.1

For the avoidance of doubt, the cancellation or surrender of the Service Provider's accreditation immediately terminates this Contract without the need for the Commonwealth to give further notice to the Service Provider and without giving the Service Provider any entitlement to compensation or damages.
Note: Refer to subsection 20(4) of the Hearing Services Administration Act 1997 (Cth).

29 Termination by Either Party on 30 Days Notice

29.1

Either Party may terminate this Contract by giving thirty (30) days written notice of its intention to terminate this Contract on a particular date and if such notice is given this Contract will terminate with effect on and from that date.

29.2

If this Contract is so terminated, the Commonwealth will be liable only for payments under the payment provisions of this Contract for Services provided before the effective date of termination.

29.3

The Service Provider must claim payment for provision of Services provided to Clients prior to the termination of this Contract within thirty (30) days of the date of the termination.

29.4

The Commonwealth will not be liable to pay compensation or damages in respect of a termination under this clause 29.

29.5

The Service Provider must not perform an assessment Service for any Client after the Service Provider or the Commonwealth has given notice of termination of this Contract under this clause 29, unless the Commonwealth has given written permission for such an assessment to proceed.

30 Termination by Default

30.1

Without limiting any other rights or remedies the Commonwealth may have arising out of or in connection with this Contract, the Commonwealth may terminate this Contract effective immediately by giving written notice to the Service Provider if:
(a) the Service Provider breaches a Condition of Accreditation, clause 5.1(a), clause 8, clause 13 or clause 14;

(b) the Service Provider breaches any other provision of this Contract where the breach is capable of remedy and does not remedy the breach within twenty (20) Working Days after notice from the Commonwealth requiring it to do so (or such longer period as specified by the Commonwealth in the notice);

(c) the Service Provider breaches any provision of this Contract where the breach is material and is not capable of remedy;

(d) the Service Provider persistently breaches a provision of this Contract;

(e) there is any fraud by the Service Provider or Service Provider Personnel;

(f) clause 12.1(b) applies;

(g) the Service Provider has breached the Previous Contract (if any) or any other contract between the Service Provider and the Commonwealth made pursuant to section 20 of the Hearing Services Administration Act 1997 (Cth);

(h) the Service Provider has not submitted a Claim Form for three (3) months;

(i) an Insolvency Event occurs; or

(j) there is a Corporate Change in relation to the Service Provider.

Note: Service Providers should also be aware of section 19 of the Hearing Services Administration Act 1997 (Cth) which requires the Minister to revoke their accreditation if a "disqualified person" becomes involved. Top of Page

30.2

For the purposes of clause 30.1, a "persistent breach" occurs where the Service Provider breaches a term of this Contract so often that the Service Provider clearly shows an intention not to be bound by that term.

30.3

If a purported termination for default by the Commonwealth under this clause 30 is determined by a competent authority not to be properly a termination for default, then that termination by the Commonwealth will be deemed to be a termination on notice under clause 29 which termination has effect from the date thirty (30) days after the notice of termination referred to in this clause 30.

31 Consequences Upon Termination

31.1

Upon termination of this Contract:
(a) the Service Provider is not entitled to claim any Scheduled Fee under this Contract except for any Scheduled Fee which may be payable to the Service Provider for Services where those Services:
(i) were provided prior to the termination of this Contract; and

(ii) were completed in accordance with this Contract;

(b) the Service Provider must, upon request, provide to the Commonwealth the Records and all copies of them;

(c) the Service Provider must ensure that any references to being contracted by the Commonwealth to provide Services do not appear in its advertisements, marketing material and other documents; and

(d) the Service Provider must repay or reimburse any amounts due under clause 14.5 and clause 15.

31.2

Termination of this Contract does not affect any accrued rights or remedies of a Party.

Part 7 - General

32 Disclosure of Information

32.1

It is a condition of this Contract that:
(a) the Service Provider has disclosed in writing to the Commonwealth prior to the Commencement Date:
(i) any litigation, arbitration, mediation, conciliation or proceeding whatsoever including any investigations ("Proceedings"), that are taking place, pending or threatened, against the Service Provider; or

(ii) any matters relating to the commercial, technical or financial capacity of the Service Provider or of any subcontractor proposed to be engaged or currently engaged in respect of this Contract including the existence of any breach or default or alleged breach or default of any agreement, order or award binding upon the Service Provider,

being Proceedings or matters that could have an adverse effect on the Service Provider’s ability to perform any of its obligations under this Contract; and Top of Page

(b) the Service Provider will promptly notify and fully disclose to the Commonwealth in writing any event or occurrence actual or threatened including matters of the kind described in clause 32.1 during the Term which could have an adverse effect on the Service Provider’s ability to perform any of its obligations under this Contract.

32.2

The Service Provider must notify the Commonwealth as soon as practicable if an Insolvency Event occurs.

32.3

The Service Provider acknowledges that the Commonwealth may make enquiries of and exchange information with Practitioner Professional Bodies regarding the Service Provider's Qualified Practitioners, Provisional Audiologists and Provisional Audiometrists.

33 Negation of Employment, Partnership and Agency

33.1

The Service Provider must not represent itself, and must ensure that its Service Provider Personnel do not represent themselves, as being employees, partners or agents of the Commonwealth.

33.2The Service Provider will not by virtue of this Contract be, or for any purpose be deemed to be, an employee, partner or agent of the Commonwealth.

34 Assignment, Novation and Corporate Change

34.1

The Service Provider must not assign its rights, or any part of its rights, under this Contract, or novate this Contract, without the prior consent in writing of the Commonwealth. The Commonwealth reserves the right to audit the Service Provider before agreeing to an assignment of rights or novation of this Contract. The Service Provider must seek the Commonwealth's consent to assignment or novation at least twenty (20) Working Days before the proposed date of effect of an assignment or novation.
Note: Records cannot be sold as Records, and their copies, are the property of the Commonwealth under clause 4.1(f).
34.2 The Commonwealth may in its absolute discretion refuse to give its consent to a proposed assignment or novation, or in giving its consent impose such conditions as it thinks fit.

34.3 The Service Provider must notify the Commonwealth:

(a) as soon as practicable prior to the expected date of implementation of any Corporate Change, and provide confirmation within five (5) Working Days after the Corporate Change has taken effect; or

(b) if it is not practicable to provide notice prior to any Corporate Change, as soon as practicable or within five (5) Working Days after the Corporate Change has taken effect, whichever is sooner.




35 Entire Contract

35.1

Subject to the Act, this Contract constitutes the entire agreement between the Parties and supersedes prior agreements and all communications, negotiations, arrangements and agreements, either oral or written, between the Parties with respect to the subject matter of this Contract.

36 Waiver

36.1

A waiver by a Party to this Contract in respect of a breach of a provision of this Contract by the other Party will not be deemed to be a waiver in respect of any other breach, and the failure of a Party to enforce at any time any of the provisions of this Contract will in no way be interpreted as a waiver of such provision.

36.2

The Commonwealth will not be liable for any additional work undertaken or expenditure incurred by the Service Provider pursuant to a variation to this Contract unless such variation has been effected in accordance with this Contract and the additional expenditure has been agreed to by the Commonwealth.

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37 Applicable Law

37.1

This Contract will be governed by the laws for the time being in force in the Australian Capital Territory and the Parties agree to submit to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.

37.2

The Service Provider must ensure that the work done under this Contract complies with the laws from time to time in force in the State or Territory in which work associated with the Services, or any part thereof, are to be performed.




38 Cumulative Remedies

38.1

Except as expressly provided otherwise in this Contract, a right, power, remedy, entitlement or privilege given or granted to the Commonwealth under this Contract is cumulative with, without prejudice to and not exclusive of any other right, power, remedy, entitlement or privilege given or granted to the Commonwealth under this Contract, under the Act, at law or in equity.

39 Compliance with Commonwealth Laws

39.1

The Service Provider acknowledges that it may be considered a ‘Commonwealth service provider’ under the Ombudsman Act 1976 (Cth) and that it may be subject to investigation by the Commonwealth Ombudsman under that Act.

39.2

The Service Provider acknowledges and agrees that it will bear the cost of any investigation of its activities by the Commonwealth Ombudsman in connection with the subject matter of this Contract.

39.3

The Service Provider agrees, in carrying out this Contract, to comply with all relevant legislation of the Commonwealth (particularly the Crimes Act 1914, Criminal Code Act 1995, Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, Equal Opportunity for Women in the Workplace Act 1999, Age Discrimination Act 2004, Ombudsman Act 1976 and Auditor-General Act 1997), or of any State, Territory or local authority.

39.4

The Service Provider acknowledges that under section 137.1 of the Schedule to the Criminal Code Act 1995 (Cth), giving false or misleading information to the Commonwealth is a serious offence.

39.5

The Service Provider must not, and must ensure Service Provider Personnel do not, by act or omission place the Commonwealth in breach of its obligations under the Work Health and Safety Act 2011 (Cth).

39.6

Subject to clauses 22 and 23, no right or obligation in this Contract is to be read or understood as limiting the Service Provider's rights to enter into public debate or criticism of the Commonwealth, its agencies, officers, employees or agents.




40 Survival

40.1

Clauses 4.1(f), (g) and (h), 4.2, 13.10, 13.12, 14, 15, 16, 18, 19, 21, 22, 23, 25, 26 and 31 survive the expiry or termination of this Contract, together with any provision of this Contract which expressly or by implication from its nature is intended to survive the expiry or termination of this Contract.

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41 Notices

41.1

A notice required or permitted to be given by one Party to another under this Contract must be in writing and is treated as being duly given if it is:
(a) left at that other Party's address;

(b) sent by pre-paid mail to that other Party's address; or

(c) transmitted by facsimile to that other Party's address.

41.2

A notice required or permitted to be given by the Commonwealth to the Service Provider under this Contract is treated as being in writing and duly given if it is emailed to the email address set out in clause 41.4 or, if the Service Provider has notified the Commonwealth of another email address for notices under this Contract, that email address.

41.3

A notice given to a Party in accordance with clause 41.1 will be treated as having been duly given and received:
(a) when delivered (if left at that Party's address);

(b) on the third Working Day after posting (if sent by pre-paid mail); or

(c) on the Working Day of transmission (if given by facsimile and sent to the facsimile receiver number of that Party and no intimation has been received that the notice had not been received, whether that intimation comes from that Party or from the operation of facsimile machinery or otherwise).

41.4

For the purposes of this clause 41, the address of a Party is the address set out below or another address of which that Party may from time to time give notice to each other Party:

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