Skills Assure Supplier Agreement (for User Choice program) · Skills Assure Supplier Agreement Page 7 of 30 Department of Employment, Small Business and Training– Version 1, template

Queensland Vocational Education and Training

Skills Assure Supplier Agreement – User Choice

between

STATE OF QUEENSLAND (represented by the Department of Employment, Small Business and Training)

and

«Supplier_Legal_Name» [Supplier Legal Name]

Skills Assure Supplier Agreement

Page 2 of 30 Department of Employment, Small Business and Training – Version 1, template effective 1 July 2020

Contents

PARTICULARS ................................................................................................................................ 3

Item 1 Department ........................................................................................................................... 3

Item 2 Supplier ................................................................................................................................. 3

Item 3 Program(s) ............................................................................................................................ 3

BACKGROUND ............................................................................................................................... 4

AGREED TERMS ............................................................................................................................. 4

1. Term ...................................................................................................................................... 4

2. Construction and interpretation of this Agreement .......................................................... 4

3. Addition or removal of Programs and Qualifications ....................................................... 5

4. Supplier’s obligations ........................................................................................................... 5

5. Department’s obligations ..................................................................................................... 8

6. Reporting .............................................................................................................................. 8

7. Supplier’s acknowledgment regarding funding and warranty ........................................ 9

8. Supplier’s employees and contractors .............................................................................. 11

9. GST ...................................................................................................................................... 12

10. Overpayments ..................................................................................................................... 12

11. Records ................................................................................................................................ 12

12. Access to premises and records ......................................................................................... 13

13. Publicity .............................................................................................................................. 14

14. Conflicts of interest and inducements ............................................................................... 15

15. Insurance ............................................................................................................................. 15

16. Indemnity and release ........................................................................................................ 16

17. Personal Information ......................................................................................................... 16

18. Subcontracting .................................................................................................................... 17

19. Performance review and audit process ............................................................................. 18

20. Events of Default ................................................................................................................ 19

21. Consequences of default ..................................................................................................... 20

22. Termination or removal at Supplier’s request ................................................................ 21

23. Termination, suspension or removal by Department without cause ............................. 21

24. Consequences of termination, suspension or removal ..................................................... 21

25. Clauses to survive termination .......................................................................................... 22

26. Dispute resolution ............................................................................................................... 23

27. Notices ................................................................................................................................. 23

28. Change in control ............................................................................................................... 23

29. Good faith ........................................................................................................................... 24

30. General provisions.............................................................................................................. 24

31. Definitions and interpretation ........................................................................................... 25

Schedule 1 – Delivery Schedule ...................................................... Error! Bookmark not defined.


Page 3 of 30 Department of Employment, Small Business and Training– Version 1, template effective 1 July 2020

PARTICULARS

Item 1 Department

Name: State of Queensland (represented by the Department of Employment, Small Business and Training) ABN: 84 375 484 963 Address:

85 George Street Brisbane QLD 4000 Level 9

Attention: Executive Director, Design, Investment Division

Email: [email protected]

Item 2 Supplier

Name: «Supplier_Legal_Name» (trading as [insert business name])

[Supplier Legal name ABN: «ABN»

[Supplier ABN]

Address: «Street_Address_1» «Street_Address_2», «Suburb», «State», «Postcode»

[Supplier Address] Attention:

[Supplier to insert contact officer name] Email:

[Supplier to insert email address – must be a personal email address related to the nominated contact officer] All formal correspondence for the Supplier will be issued to this email address.

Item 3 Program(s) the User Choice Program 2020-21

As outlined in this Agreement and the Department’s Policies respectively.



AGREEMENT BETWEEN: STATE OF QUEENSLAND (represented by the Department of

Employment, Small Business and Training) (the Department)

AND: The person named as the Supplier in Item 2 of the Particulars (the Supplier)

BACKGROUND A. The Department administers the Programs and Funding. B. To receive Funding from the Department for the delivery of Training and Assessment to

Students under a Program, Suppliers must have Skills Assure Supplier status. C. The Supplier has applied to the Department to:

(a) be a Skills Assure Supplier; and (b) receive Funding under one or more of the Programs.

D. By executing this Agreement the Department: (a) approves the Supplier as a Skills Assure Supplier on the terms of this Agreement

and the Department’s Policies; and (b) agrees to provide funding to the Supplier under the Program on the terms of this

Agreement. E. By executing this Agreement, the Supplier accepts the terms and conditions of this

Agreement.

AGREED TERMS

1. Term This Agreement starts on the Commencement Date and will continue until the Expiry Date unless is terminated earlier in accordance with its terms.

2. Construction and interpretation of this Agreement 2.1 Unless a contrary intention appears, terms used in this Agreement must be interpreted in

accordance with the definitions and interpretations set out in clause 31 of this Agreement. 2.2 This Agreement sets out the terms and conditions on which the Department will provide

Funding to the Supplier and on which the Supplier must deliver the Services.

2.3 The Delivery Schedule and Department’s Policies may also specify or refer to documents, specifications, guidelines, policies or standards that the Supplier must comply with, meet or have regard to in relation to the parties’ obligations under this Agreement. For example, as a supplier to the State of Queensland, the Supplier must comply at all times with the Ethical Suppliers Threshold and Ethical Supplier Mandate (if applicable) despite that document not being attached to this Agreement.

2.4 This Agreement also includes any documents that the parties may sign from time to time varying or extending this Agreement.



3. Addition or removal of Programs and Qualifications (a) This Agreement may be varied to add or remove a Program or a Qualification using

the process set out in this clause 3. (b) The Supplier may apply to add or remove a Program or Qualification using the

processes provided for in the Department’s Policies (Variation Application). (c) If the Department agrees to accept the Variation Application, the Department will

give notice to the Supplier (Variation Notice). The Variation Notice: (i) varies this Agreement in the manner provided effective from the date of the

Variation Notice; and (ii) does not limit or prejudice the parties accrued rights under this Agreement.

(d) The Department may change the Funding payable under each Program, Qualification and Unit of Competency from time to time without a variation to the Agreement, by varying the Department’s Policies, Priority Skills List or User Choice Price List published on the Department’s website.

4. Supplier’s obligations 4.1 To qualify for Funding, and otherwise at all times, the Supplier must:

(a) deliver the Services strictly in accordance with this Agreement as an independent contractor;

(b) comply with the terms of this Agreement at all times (including all acknowledgments, representations and warranties);

(c) comply with the Department’s Policies current at the Commencement Date and as may be amended or added from time to time;

(d) comply with all requests, directions, directives, orders and monitoring requirements made by the Department and notified to the Supplier;

(e) ensure that it remains registered as an RTO authorised to deliver Training and Assessment within Queensland during the Term;

(f) ensure that all Qualifications contained in the Delivery Schedule remain within the scope of its RTO registration in Queensland;

(g) notify the Department no later than two Business Days after the Supplier: (i) is found non-compliant in an ASQA performance review or audit; (ii) is notified by ASQA that it intends to impose a sanction on the Supplier; (iii) voluntarily requests to withdraw all or parts of its RTO registration; and (iv) is notified, or becomes aware that it is, or may become subject to an

investigation (or similar process) by an Government Agency including ASQA, Australian Competition Commission (ACCC), Australian Securities and Investments Commission (ASIC) or the Australian Tax Office (ATO);

(h) notify the Department no later than one Business Day after the Supplier becomes aware of any of the following (i) an incident that affects or is likely to affect the delivery of any Services or

comply with its obligations under this Agreement;



(ii) an incident that relates to any of the Services and that requires an emergency response include fire, natural disaster, bomb threat, hostage situation, death or serious injury, or threat of death or serious injury, of any person or any criminal activity;

(iii) an incident that may relate to any person subject to interventions by the Department’s staff and agents; and

(iv) a matter where significant media attention has occurred or is likely to occur; (i) provide Training and Assessment to Students with skill, care and diligence to a high

professional standard; (j) comply with any legislation and requirements of any Commonwealth, State,

Territory or local authority, including but not limited to: (i) where applicable to apprentices and trainees, the Further Education and

Training Act 2014 (“the Act”); (ii) the VET Quality Framework as a RTO; (iii) the NVR Act, and any other Act(s) that may apply; and (iv) all relevant laws in the performance of its obligations under this Agreement;

(k) take all steps necessary to provide the Services to the skill, care and diligence to a high professional standard possible having regard to best industry practice, good corporate governance and the Department’s reasonable expectations for the provision of Services to the State of Queensland, the Students and the prudent use of public monies;

(l) provide information about the Program, the relevant industry, Training and Assessment and related matters to Students or other persons notified by the Department from time to time;

(m) maintain the capacity to deliver each Approved Qualification to ensure the provision of high-quality Training and Assessment in Queensland in accordance with the VET Quality Framework;

(n) keep itself informed of, and comply with, the Department’s requirements for the Services and the Program including participating in any information sessions carried out by the Department relevant to the Department’s Policies and Programs;

(o) obtain and maintain all permits, registrations and licences required to be taken out in connection with the Supplier’s performance of the Services;

(p) have and comply with a dispute resolution procedure for disputes between the Supplier and any other person with whom the Supplier may interact with in the provision of the Services and the Supplier must make a copy of that procedure available to persons interacting with the Supplier;

(q) keep and implement a document outlining the Supplier’s procedure for dealing with complaints that any person may make about any of the Services or the activities and actions of the Supplier in providing the Services and make it available for viewing by any person on request;

(r) advise any person who makes a complaint about any of the Services or the Supplier’s conduct in providing the Services that they may complain to the Department, the Queensland Training Ombudsman or a complaints agency if they are not satisfied with the outcome of the complaint;



(s) ensure only the Department, the Supplier and no other person markets, promotes or advertises the Supplier’s status as a Skills Assure Supplier under this Agreement or the Supplier’s capacity to claim Funding under a Program except with the prior written consent of the Department;

(t) participate in general research, monitoring or evaluation programs of the Department relating to the provision of Training and Assessment;

(u) meet the Performance Standards for SAS and KPIs for the Program; and (v) be, and remain, financially viable and able to pay its debts as and when they fall

due regardless of any funding to be provided under the Program.

4.2 The Supplier must not: (a) incur a level of indebtedness or financial difficulty such that, in the Department’s

opinion, the Supplier will or may not be able to comply with its obligations under this Agreement; and

(b) discontinue or reduce any of the Services, or otherwise take recriminatory action, because a person makes a complaint to the Supplier about the Supplier’s conduct or the Services. Nothing in this clause prevents the Supplier from taking action as necessary to ensure safety and prevent harm to any person (including others that may come to the Supplier’s attention through the lodgment of the complaint).

4.3 If the Supplier is, or becomes, aware of an allegation that raises a reasonable suspicion of misconduct or dishonesty of a serious nature by the Supplier, the Supplier’s employees, volunteers, agents or Subcontractors in respect of any matter (including relating to the use of the Funding or operation of the Services) including an allegation of an offence liable to imprisonment, the Supplier must: (a) immediately, and in any event no later than 2 Business Days after the Supplier

becomes aware, notify the Department if the allegation involves misconduct or dishonesty concerning the Supplier; and

(b) in all cases report the allegation to a relevant authority such as the Queensland Police Service and notify the Department when it has been reported.

For clarity, the Supplier will be deemed to have become aware of an allegation when any of their Personnel become aware of that allegation.

Cultural accessibility and sensitivity

4.4 The Supplier must ensure that the Services are culturally accessible to Aboriginal and Torres Strait Islander peoples, people with disabilities, and to people from culturally and linguistically diverse backgrounds, recognising the diverse needs of people, including specific needs, from urban, regional and remote areas.

4.5 Where the target group for the Services is Aboriginal and Torres Strait Islander peoples, the Supplier must, if the Department requests, provide evidence to the Department’s satisfaction that individuals, families, cultural custodians, clan and language groups, community organisations, communities or representatives deemed appropriate by the community to which the Services are being delivered, are engaged in the design, delivery and evaluation of programs and the Services to ensure they are appropriate to local community and cultural needs.

4.6 The Supplier agrees that, in delivering all Services the Supplier will: (a) respect the cultural and spiritual significance of Aboriginal and Torres Strait

Islander people;



(b) refrain from incorporating any elements derived from Aboriginal and Torres Strait Islander cultural heritage into any material created under the Agreement without the informed and written consent of the cultural custodians, clan or language groups and community representatives deemed acceptable by each community; and

(c) inform The Department in writing about any elements derived from Aboriginal and Torres Strait Islander cultural heritage which the Supplier incorporates into any material which the Supplier creates and delivers to the Department under this Agreement, and of any consent which the Supplier has obtained relating to the use of such elements.

5. Department’s obligations 5.1 The Department must:

(a) publish the Department’s Policies on the Department’s Website; and (b) pay Funding to the Supplier in accordance with this Agreement and the

Department’s Policies, if at the time when the Training and Assessment for which Funding is claimed was provided, and at all times subsequently: (i) the Supplier has complied with its obligations under this Agreement; and (ii) there is no Event of Default.

5.2 The Department is subject to the Information Privacy Act 2009 (Qld) and the Right to Information Act 2009 (Qld) and will comply with its obligations under those acts and all other relevant laws.

6. Reporting 6.1 The Supplier must report to the Department electronically via DETConnect using an

AVETMISS compliant system. 6.2 The AVETMISS data must be provided in accordance with:

(a) AVETMISS documents, including data element definition rules and guidelines and specifications; and

(b) the Department’s Policies.

6.3 The Supplier must ensure that: (a) all AVETMISS data provided to the Department is accurate; and (b) the Supplier claims only for Funding to which it is entitled in accordance with this

Agreement and the Department’s Policies.

6.4 The Supplier must give the Department any other information and material reasonably requested by the Department no later than 5 Business Days after a request, including (without limitation): (a) records of complaints made in respect of the Supplier; (b) copies of records of Training and Assessment (in the form of Student files)

requested by the Department; (c) financial statements of the Supplier certified by a Qualified Accountant; and (d) any other information to satisfy the Department of the Supplier’s financial viability.



6.5 The Supplier consents to the Department forwarding any information or material obtained by the Department from the Supplier pursuant to clause 6.4, or otherwise, to the Department's agent or contractor to perform a financial assessment or similar service. Any report of the Department's agent or contractor will be confidential to the Department and the Supplier will not be entitled to inspect or receive a copy of the report.

6.6 The Department’s reporting requirements prevail to the extent of any inconsistency between the AVETMISS reporting requirements and the Department’s reporting requirements.

6.7 The Department may, by giving the Supplier notice, require that the Supplier provide some or all of the reports required under this Agreement (including any of the Department’s Policies) more or less regularly than provided for in this Agreement.

6.8 A notice that the Department gives the Supplier under this clause need not be in any specified form but must: (a) in the case of a notice under clause 6.7, specify the relevant reports and how

regularly the Supplier must give them to the Department; and (b) in the case of a notice under clause 6.4 specify:

(i) the information the Department requires; (ii) the way that the Department requires the Supplier to provide the information;

and (iii) the time within which the Supplier is required to provide the information.

6.9 If the Department requires information under clause 6.4 the Supplier must provide that information to the Department within the timeframe specified in the Department’s notice.

6.10 All reports and information provided by the Supplier under this Agreement, must be: (a) true and accurate in all respects; (b) of a standard and in a format acceptable to the Department; and (c) provided to the Department electronically via the reporting system specified by the

Department or by such other method as specified in any notice given to the Supplier under clause 6.4 or as otherwise notified to the Supplier by the Department from time to time.

6.11 Without limiting any other provision of this Agreement, if the Supplier fails to comply with this clause: (a) the Department may treat that failure as a breach of an essential term of this

Agreement; and (b) this may adversely impact on any decision the Department may make about

providing additional funding to the Supplier under this Agreement or any other subsequent funding assistance.

7. Supplier’s acknowledgment regarding funding and warranty 7.1 The Supplier acknowledges that:

(a) entering into this Agreement as a Skills Assure Supplier is not a warranty or assurance by the Department that the Supplier will receive any funding or any quantity of funding, or carry out the whole or any part of the Services or the Program, during the Term;



(b) the Supplier’s appointment as a Skills Assure Supplier, and its engagement to carry out the Services and receive any Funding in accordance with this Agreement, is not exclusive;

(c) the Department is under no obligation to provide any Funding to the Supplier other than as expressly provided for under this Agreement, including that payment for a Unit of Competency may be withheld until the Department is reasonably satisfied the Supplier has delivered Training and Assessment in that unit to the Student, and the Student is an eligible Student under the Program;

(d) the Department may: (i) appoint any one or more suppliers to be a Skills Assure Supplier; (ii) engage any one or more suppliers under any other agreement; (iii) use any one or more suppliers to carry out the whole or any part of the

Services or other similar services, obtain any funding under the Program or any other program (including any Program added to this Agreement); and

(e) the Supplier provides Training and Assessment to Students at its own risk, including the risk that the Department may do any of the following: (i) change the Department's Policies (including, without limitation, by changing

or reducing funding); (ii) Suspend Funding pursuant to clause 21.1 or 21.3; (iii) terminate the Agreement, whether for default (pursuant to clause 21) or

without cause (pursuant to clause 23); (iv) remove a Program or Qualification from the Agreement; (v) remove funding for outcomes, such as a Qualification, contemplated by the

parties at the Commencement Date as being a part of the Program; and (vi) the Department exercising any of its rights under clause 23.

7.2 The Supplier represents and warrants that: (a) all material provided in the Supplier’s application or any other material provided to

the Department including in relation to the Supplier’s financial viability or ability to comply with its obligations under this Agreement is true and correct;

(b) it has the power to enter into this Agreement; (c) it has read this Agreement in its entirety before entering into this Agreement and

understands the obligations of the Supplier and the rights of the Department under this Agreement;

(d) if the Supplier’s principal business address (i.e. the primary location where the Supplier carries on business as displayed as the “principal place of business” on either the ASIC public register or on its ASQA RTO Registration details) is not in Queensland, the Supplier has capacity to deliver the Services in Queensland.

(e) it has the necessary skills and expertise to supply the Services and otherwise comply with its obligations under this Agreement;

(f) it has all necessary approvals and qualifications required to lawfully deliver the Services;



(g) its Personnel have the necessary skills and expertise to perform the Services and will undertake continuing training if required by the Department to ensure its Personnel’s skills and expertise are up to date with the Department’s Policies; and

(h) it had fully complied with its obligations under, and there was no breach by the Supplier of, the Expired PQS Agreement and, to the extent any obligation under the Expired PQS Agreement is capable of surviving the expiry or termination of the Expired PQS Agreement, either expressly or otherwise, then the Supplier will continue to comply with the Expired PQS Agreement.

7.3 The Supplier agrees that: (a) the Supplier’s acknowledgements, representations and warranties in clause 7

are made both at the Commencement Date and on every day of the Term; and (b) the Department has relied on the acknowledgements, representations and

warranties in clause 7 in appointing the Supplier as a Skills Assure Supplier, entering into this Agreement with the Supplier and providing funding to the Supplier under any one or more Programs on the terms of this Agreement.

8. Supplier’s employees and contractors 8.1 All Personnel that the Supplier employs or contracts within any capacity are the

Supplier’s responsibility.

8.2 The Supplier will ensure that the Personnel are: (a) aware of the terms of this Agreement and comply with them; and (b) sufficiently qualified, skilled and experienced to comply with the Supplier’s

obligations under this Agreement.

8.3 The Supplier is responsible for: (a) the performance of all its obligations under this Agreement even those that are

performed by its Personnel; and (b) payment of all wages and entitlements to any employees and contractors.

8.4 The Supplier must ensure that its Personnel are available to attend any monitoring and compliance audits, briefings, training and information sessions held by the Department from time to time relating to this Agreement.

8.5 If requested, the Supplier must, upon 5 business days’ notice, give the Department: (a) the names and employment status (for example, full time, contractor) of each of

their training staff; and (b) copies of the qualifications held by their training staff in respect of each of the

Qualifications listed in the Delivery Schedule attached to this Agreement.

8.6 The Supplier must not engage Personnel that held, or currently hold, a senior management position within, or ownership of, a company that: (a) had any of the following types of contracts terminated for non-compliance with the

terms and conditions of that contract or poor performance: (i) a pre-qualified supplier agreement with the Department. (ii) a vocational education and training related contract with a Government

Agency, or (b) had its registration as an RTO refused, cancelled, terminated or revoked.



9. GST 9.1 The parties agree that the supplies of Training and Assessment funded under this

Agreement are not subject to GST.

9.2 Amounts of any payments specified in this Agreement are inclusive of any GST and the recipient of a supply is not required to pay any additional amount to the supplier on account of GST.

9.3 The Department can issue recipient created tax invoices in respect of supplies by the Supplier under this Agreement.

9.4 The Supplier will not issue tax invoices in respect of the supplies by the Supplier.

9.5 The Supplier acknowledges that it is registered for GST when it enters into this Agreement and that it will notify the Department if it ceases to be registered.

9.6 The Department acknowledges that it is registered when it enters into this Agreement and that it will notify the Supplier if it ceases to be registered for GST.

10. Overpayments 10.1 In this clause, ‘Overpayments’ means payments by the Department to the Supplier to

which the Supplier is not entitled in accordance with this Agreement or the Department’s Policies, for example, payments based on reports submitted by the Supplier which are incorrect.

10.2 Overpayments are and remain debts due to the Department.

10.3 The Supplier must repay any Overpayment to the Department without any deduction or set off within 5 Business Days of the Supplier discovering the Overpayment or the Department sending an invoice for the Overpayment to the Supplier, whichever is the earlier.

10.4 The Department may, without limitation, offset any amount payable by the Supplier to the Department under this clause, any other provision of this Agreement or any other agreement between the parties against any monies payable by the Department to the Supplier under this or another agreement between the parties.

11. Records 11.1 The Supplier must keep the following information and material for 7 years from the end

of the Term: (a) information and material necessary to provide a complete record of Training and

Assessment including: (i) records of each Student’s participation in Training and Assessment for each

Unit of Competency, including records of the commencement of educational content, attendance and progression;

(ii) evidence that the on-the-job training component (only if on-the-job training is applicable) has been achieved for each Unit of Competency for each Student before the Supplier claims payment of funding in relation to the Unit of Competency;

(iii) evidence supporting the accuracy and validity of data included in reports provided by the Supplier to the Department under clause 6, including



evidence supporting the start and end dates for each Student for each Unit of Competency; and

(iv) copies of the Qualifications and Statements of Attainment issued to each Student;

(b) for each Unit of Competency, for each Student: (i) the assessor’s completed marking guide, criteria and observation checklists

for the Unit of Competency; and (ii) the completed assessment items for the Unit of Competency retained in hard

copy (paper-based) or electronic (digital/scanned) form; and (c) any other information and material required to substantiate claims for funding as

outlined in the Department’s evidence requirements documents, or reasonably requested by the Department.

11.2 The Supplier must maintain complete and accurate data, financial and other records to ensure that the Department is able to validate the accuracy and completeness of any reports and other information that the Supplier provides to the Department including under clause 6.

11.3 The Supplier must ensure that: (a) all physical records relating to the delivery of the Services are stored in Queensland

and accessible by the Supplier at all times; (b) all electronic information and documents relating to the delivery of the Services are

stored in Australia (not offshore) and are accessible by the Supplier at all times; and (c) all records requested by the Department are delivered to or made available for

review electronically (by administrator access to electronic systems) no later than 5 Business Days after the Department’s request.

12. Access to premises and records 12.1 The Supplier must give the Department, its servants and agents, and the representatives

of any relevant regulatory body or authority access to the Supplier’s premises and administrator level access to the Supplier’s electronic systems for communication (including emails), financial management (including payments to trainers) and document storage: (a) to inspect and copy information and material related to this Agreement or kept by

the Supplier under clause 11; (b) to remove information and material related to this Agreement and store that

information and material until the Department has completed its review or investigation of that information and material; and

(c) to monitor the provision of Training and Assessment and performance of the Supplier’s obligations under this Agreement.

12.2 The Department must give 5 Business Days’ notice to the Supplier before obtaining access under clause 12.1.

12.3 The Supplier must ensure that the Supplier’s employees, agents, Subcontractors and contractors are available (either in person or by an approved tele or video conferencing application) and provide full and accurate answers in respect of any questions the



Department asks in connection with the Training and Assessment or the performance of the Supplier’s obligations under this Agreement.

12.4 The Supplier must give the Department access to its Students for purposes connected with monitoring the Supplier’s performance under this Agreement.

12.5 The Supplier acknowledges that the Department may make enquiries of employers or other third parties for purposes connected with monitoring the Supplier’s performance under this Agreement.

12.6 The Supplier must, no later than 5 Business Days after the Commencement Date, give the Department a notice specifying: (a) the location of all physical records retained by the Supplier in accordance with this

Agreement; and (b) the names and storage locations of all electronic systems used by the Supplier in

respect of communication (including emails), financial management (including payments to trainers) and document storage.

12.7 If any of the information provided by the Supplier under clause 12.6 changes during the Term for any reason, the Supplier must, no later than 5 Business Days after the change, give the Department a notice providing updated and accurate information.

13. Publicity 13.1 The Department may communicate or publish information to third parties about any

matter relating to this Agreement, including (without limitation) information relating to: (a) the Supplier; (b) the funding; (c) enrolment, completion, and attrition rates; and (d) the Supplier’s compliance with its obligations under this Agreement.

13.2 The Department may publish the information under clause 13.1 through any medium, including its website.

13.3 The Supplier must not make any misleading public statements, including any statements to Students, employers or any organisation, about this Agreement and any Program, the level of funding or actions taken by the Department under this Agreement.

13.4 The Supplier must, in making any public statements in relation to the Training and Assessment funded under this Agreement, include an acknowledgment of the funding received from the Department and such acknowledgement will be on terms reasonably approved by the Department.

13.5 The Supplier’s marketing and promotional material must: (a) refer to the Program as set out in Item 3 of the Particulars or in some other way that

may be specified from time to time by the Department; (b) not contravene any Department directive or publication/marketing guideline

relating to the marketing of Program; and (c) in the case of the Program(s), refer to such Program(s) by such name as is specified

from time to time by the Department.

13.6 The Supplier is not authorised, and nothing in this Agreement will be construed to authorise the Supplier, to use the logo of the State of Queensland or the Department or



any other intellectual property of the Department on any advertising, promotional, training or other material of the Supplier unless the Department, in its absolute discretion, has given its prior written approval to the same and where such approval is granted by the Department, it may be granted on such terms and conditions as the Department determines.

Use of the Skills Assure Identifier Logo

13.7 Except as provided for in this clause, intellectual property rights in the Skills Assure Identifier Logo vests in the Department.

13.8 The Supplier must use the Skills Assure Identifier Logo in any advertising, publicity or promotional material relating to the Programs;

13.9 The Department provides an untransferable licence to the Supplier to use the Skills Assure Identifier logo in accordance with this Agreement and provided the Supplier complies with the Skills Assure Identifier Guidelines published on the Department’s website from time to time.

13.10 On the conditions outlined this Agreement, and in the Skills Assure Identifier Guidelines, the Department will provide the Supplier with image files (.jpeg, eps, .png and .pdf) of the Skills Assure Identifier logo.

13.11 The Supplier must ensure that the Skills Assure Identifier is only used, copied, supplied or reproduced for the purposes of delivering the Services.

14. Conflicts of interest and inducements 14.1 The Supplier warrants that as at the date it executes this Agreement it does not have a

conflict of interest in the performance of this Agreement and that a conflict of interest is unlikely to arise.

14.2 If a conflict or risk of conflict of interest arises during the Term, the Supplier must immediately give notice of it to the Department.

14.3 The Supplier must comply with all reasonable directions of the Department in relation to the conflict of interest.

14.4 The Supplier must not offer anything to the Department or any employee or agent of the Department, including a parent, spouse, child or associate of the employee or agent, as an inducement, gift or reward, which could in any way influence the Department’s actions in relation to this Agreement.

14.5 The Supplier must not give, or agree or offer to give, to another person any valuable consideration with a view to securing the enrolment with the Supplier of a Student or prospective Student in relation to a Qualification funded under a Program.

14.6 Without limiting clause 14.5, the persons to whom the Supplier must not give, or agree or offer to give, any valuable consideration for a purpose mentioned in clause 14.5 include: (a) a Student; (b) a prospective Student; and (c) a person who refers or offers to refer Students or prospective Students to the

Supplier.

15. Insurance



The Supplier must obtain and maintain for the Term of this Agreement: (a) public liability insurance for a minimum of $10 million arising out of any one event

in respect of death, injury, loss, or damage howsoever sustained to any person or property; and

(b) workers compensation insurance in relation to the Supplier’s employees or as otherwise required by law.

16. Indemnity and release 16.1 The Supplier agrees to indemnify and keep indemnified the Department and its officers,

employees and agents against any Claim which may be brought against or made on or incurred by them as a result of: (a) the provision of the Training and Assessment; (b) a breach by the Supplier of any of the provisions of this Agreement; (c) any unlawful or negligent act or omission of the Supplier, or its officers, employees,

Subcontractors, contractors and other personnel except to the extent that any act or omission by the Department causes or contributes to the Claim;

(d) any publication under clause 13.1 made in good faith relying on information provided by the Supplier; and

(e) any Claim by a third party for a breach or alleged breach of that third party’s intellectual property rights in connection with the delivery of Training and Assessment under this Agreement.

16.2 The Supplier releases and discharges the Department from any Claim which, but for the provisions of this Agreement, might be brought against or made on the Department by the Supplier in connection with: (a) the Department’s publication of any information about the Supplier provided by the

Supplier to the Department; or (b) any failure of the Department’s information technology systems.

17. Personal Information 17.1 The Supplier must:

(a) comply with Parts 1 and 3 of Chapter 2 of the Information Privacy Act 2009 in relation to the discharge of its obligations under this Agreement as if the Supplier was the Department;

(b) fully co-operate with the Department to enable the Department to respond to applications for access to, or amendment of, a document containing an individual’s Personal Information and to privacy complaints; and

(c) comply with such other privacy and security measures as the Department reasonably advises the Supplier in writing from time to time.

17.2 Without limiting the Supplier’s obligations under clause 17.1 in relation to Personal Information the Department has given to the Supplier, the Supplier must: (a) not use that Personal Information other than for the purposes of the performance of

the Services, unless required or authorised by law;



(b) not disclose that Personal Information without the prior written consent of the Department, unless required or authorised by law;

(c) ensure that access to that Personal Information is restricted to those of its employees and officers who require access in order to perform their duties; and

(d) ensure that its employees and officers do not access, use or disclose that Personal Information other than in the performance of their duties.

17.3 The Supplier must ensure that its Subcontractors and contractors who have access to that Personal Information comply with obligations the same as those imposed on the Supplier under this clause.

17.4 On request by the Department, the Supplier must obtain from its employees, officers, Subcontractors or contractors engaged for the purposes of this Agreement, an executed deed of privacy in a form acceptable to the Department.

17.5 The Supplier must immediately notify the Department on becoming aware of any breach of this clause 17. The Supplier is deemed to have become aware of a breach of this clause 17, if any of the Personnel become aware of same.

18. Subcontracting 18.1 Subject to this clause 18, the Supplier may enter into Third Party Arrangements with third

parties to assist the Supplier to deliver Training and Assessment under this Agreement.

18.2 The Supplier must: (a) ensure that Third Party Arrangements:

(i) comply with the Queensland Government Ethical Supplier Threshold and Ethical Supplier Mandate (if applicable);

(ii) are set out in writing; (iii) and include:

A. a pass through of the Supplier’s obligations relevant to Training and Assessment in this Agreement;

B. an obligation on the Subcontractor to promptly deliver all Training and Assessment records to the Supplier;

C. on obligation on the Subcontractor to fully cooperate with any performance review or audit activity by the Department; and

D. a right for the Supplier to terminate the Third Party Arrangement on 30 days’ notice; and

(b) no later than 10 Business Days after entering into a Third Party Arrangement, give the Department a notice specifying: (i) the full legal and trading names of the Subcontractor; (ii) the RTO registration number of the Subcontractor (iii) the services (including Qualifications or Units of Competency) being

delivered by the Subcontractor; and (iv) the location from which the Subcontractor will be delivering those services.

18.3 The Department may, acting reasonably, direct the Supplier to terminate a Third Party Arrangement to the extent a Subcontractor is delivering any Training and Assessment the subject of this Agreement. The Supplier must comply with the Department’s direction no later than 30 days after receipt.



18.4 If requested by the Department, the Supplier must give the Department a copy of any Third Party Arrangement no later than 5 Business Days after receiving a request to do so.

18.5 The Supplier will remain liable to the Department for all of its obligations or liabilities under this Agreement regardless of any Third Party Arrangements.

18.6 The Supplier’s arrangements with its Subcontractors do not, and will not, create any entitlement, obligation, liability or relationship of any type between the Department and the Subcontractor. For example, the Supplier’s arrangement with a Subcontractor will not create an obligation for the Department to remunerate the Subcontractor.

18.7 The Supplier must not subcontract or enter into an arrangement whereby the Subcontractor promotes, markets or advertises the Program or the Supplier’s status as a SAS for the Program.

19. Performance review and audit process 19.1 The rights set out in this clause 19 are in addition to and do not replace any audit and

compliance rights of the Department set out in the Department’s Policies. 19.2 The Department can, at any time, conduct a Performance Review. Where the Department

considers it appropriate, the Department will involve the Supplier in any Performance Review.

19.3 A Performance Review may include gathering and analysing information about the Services or the Supplier’s use of the Funding for the purpose of the Department: (a) assessing the extent to which the terms of this Agreement can be, or are being, met

by the Supplier; and (b) considering or recommending a course of action to ensure compliance or to seek a

remedy of any non-compliance.

19.4 The Department can, by notice to the Supplier, nominate Auditors to conduct a Performance Review for the Department or to conduct any financial and compliance audit of the Supplier. For clarity, nominated Auditors can be Departmental staff.

19.5 If the Department gives the Supplier a notice under clause 19.4 , the Supplier must: (a) comply with the notice; (b) give the Department’s officers, agents or employees or the Auditors full and free

access to: (i) the Supplier’s employees, agents, Subcontractors and contractors; (ii) any premises where the Services are delivered or from which the Supplier

conducts the Supplier’s business; and (iii) the Supplier’s accounts, records, documents and papers that relate directly or

indirectly to the receipt, expenditure, or payment of the Funding or the conduct of the Services; and

(c) cooperate with the Department’s officers or employees or the Auditors, including by giving any assistance required to: (i) meet with the Supplier’s employees; (ii) inspect the performance of the Services; and



(iii) locate and make copies of any of the Supplier’s accounts, records, documents and papers that relate directly or indirectly to the receipt, expenditure, or payment of the Funding or the conduct of the Services.

19.6 When conducting a Performance Review or audit under this clause 19, the Department will, and will procure the Auditors to, use best endeavours to minimise interference to the Supplier’s employees and the conduct of the Services.

19.7 The Supplier must ensure that the Supplier’s employees, agents, Subcontractors and contractors provide full and accurate answers to any questions the Department or the Auditors ask in connection with the Training and Assessment or the Supplier’s obligations under this Agreement.

19.8 The Supplier must provide any information or documents that the Department or the Auditors may request in relation to a Performance Review or audit and the Supplier warrants that such information and documents are true and correct to the best of the Supplier’s knowledge.

19.9 The Supplier must ensure that, where any of the Services are to be delivered under the Supplier’s Subcontractors and contractors or auspices, the entity delivering those Services under the Supplier’s auspices will permit the Department and the Auditors access to its employees, premises, accounts, records, documents, papers to the same extent provided for in this clause 19.

19.10 The Supplier must give the Department access to its Students for purposes connected with monitoring the Supplier’s performance under this Agreement.

19.11 The Department’s rights under this clause 19 are in addition to any other rights the Department may have under this Agreement, the Act or a Governing Act.

20. Events of Default The following are ‘Events of Default’: (a) If the Supplier breaches this Agreement and the breach is determined by the

Department, in its sole and unfettered discretion, to be a breach that is not capable of being remedied.

(b) If the Supplier breaches this Agreement (other than clauses 4.1(d), 4.1(e), 4.1(f), 4.1(g), 4.1(h), 4.1(i), 4.1(j), 4.1(k), 4.1(u), 4.1(v), 6.3, 6.4, 11.3(c), 19.5, 28, 29 or 30.9 – see below) and the breach is determined by the Department, in its sole and unfettered discretion, to be a breach that is capable of being remedied and the Supplier fails to remedy the breach within 10 Business Days after a notice to remedy from the Department specifying the breach.

(c) If the Supplier breaches the same clause of this Agreement for which it has received a previous notice to remedy under clause 20(b) within the last year.

(d) If the Supplier has received 3 notices to remedy under clause 20(b) within a 12 month period and then commits another breach of this Agreement.

(e) If any information provided by the Supplier to the Department under this Agreement (including, without limitation, a report pursuant to clause 6) is false or misleading in any material respect.

(f) If the Supplier fails to meet key performance indicators specified in the Department’s Policies.



(g) If the Supplier breaches clauses 4.1(d), 4.1(e), 4.1(f), 4.1(g), 4.1(h), 4.1(i), 4.1(j), 4.1(k), 4.1(u), 4.1(v), 6.3, 6.4, 11.3(c), 19.5, 28, 29 or 30.9 or fails to issue a Qualification or Statement of Attainment in accordance with the NVR Act.

(h) If the Supplier fails to make any claims under the Funding Program for a continuous period of one year.

(i) If the Supplier is in breach of the warranty under clause 7.2(h). (j) If the Supplier breaches any other agreement between the Department and the

Supplier for the provision of funding to the Supplier. (k) If the Supplier becomes the subject of an adverse regulatory decision made by

ASQA which affects the Suppliers ability to perform its obligations under this Agreement and/or is made in relation to an Approved Qualification whether or not the Supplier’s rights for reconsideration or appeal have been exhausted.

(l) If the Supplier breaches the terms and/or conditions of any electronic data system provided by the Department for use by the Supplier, including (without limitation) the Purchasing Online Terms of Use and the DETConnect Terms and Conditions.

(m) If the Supplier: (i) enters into any arrangement or composition with its creditors generally, or

has a controller, receiver and manager or administrator appointed; (ii) goes into liquidation or passes a resolution to go into liquidation, otherwise

than for the purposes of reconstruction; (iii) has execution levied on any of its assets and the execution is not satisfied

within 28 days; or (iv) is otherwise (in the Department’s reasonable opinion) unable to pay its debts

when they fall due.

21. Consequences of default 21.1 If there is an Event of Default the Department may, by written notice to the Supplier:

(a) terminate this Agreement; (b) Suspend Funding for the Suspension Period; (c) remove, cancel or vary (including by omission or deletion) the Program or

Qualification in relation to which the Event of Default occurred from this Agreement; or

(d) vary the whole or any part of the Services (including by deletion or omission), and the Supplier agrees that nothing in this Agreement limits or affects other suppliers undertaking, and other suppliers may undertake, the whole or any part of the terminated Agreement or the whole or any part of the omitted or deducted Services or removed, cancelled, omitted or deleted Program or Qualification resulting from the exercise of the Department’s rights under this clause 21.

21.2 The Department may exercise its rights under clause 21.1(a) and 21.1(b) if the Event of Default relates to a single Program or if it relates to more than one Program.

21.3 If the Department reasonably suspects that an Event of Default has occurred, the Department may Suspend Funding for the Suspension Period and/or issue a directive to the Supplier under clause 3(c) to cease enrolments for the Suspension Period to allow the



Department to investigate, or conduct an audit or Performance Review to and make a determination as to whether there has been an Event of Default.

21.4 Without limiting the operation of, and for the purposes of, clause 21.3, the following are sufficient grounds for the Department to reasonably suspect that an Event of Default has occurred: (a) a complaint received by the Department supported by a statutory declaration or

affidavit, or (b) the identification by the Department of risk factors based on:

(i) data submitted by the Supplier pursuant to clause 6; (ii) records kept by the Supplier pursuant to clause 11; or (iii) previous breaches of this Agreement by the Supplier as evidenced by notices

issued to the Supplier under clause 20(c) of the Agreement.

21.5 Any step taken by the Department under this clause is without prejudice to any other rights, remedies or actions the Department may have.

22. Termination or removal at Supplier’s request 22.1 The Supplier may, by notice in writing to the Department, request that the Department

agree to: (a) terminate this Agreement; or (b) remove a Program from this Agreement.

22.2 The Supplier may only make a request under clause 22.1 if the Supplier has made arrangements for the continued provision of Training and Assessment to the Students of the Supplier that are satisfactory to the Department.

23. Termination, suspension or removal by Department without cause

23.1 The Department may, at its convenience, by providing 20 Business Days written notice to the Supplier: (a) terminate this Agreement; (b) Suspend Funding for the Suspension Period; (c) remove, cancel, vary (including by way of deduction or omission) or suspend a

Program or Qualification from this Agreement; or (d) vary the whole or any part of the Services (including by deletion or omission),

23.2 and the Supplier agrees that nothing in this Agreement limits or affects other suppliers undertaking, and other suppliers may undertake, the whole or any part of the terminated Agreement or the whole or any part of the omitted or deducted Services or removed, cancelled, omitted or deleted Program or Qualification resulting from the exercise of the Department’s rights under this clause 23.The Supplier releases the Department from any Claim in respect of, arising from or connected in any way with the termination of this Agreement, the suspension of funding, the removal, cancellation, variation or suspension of a Program or the variation of the Services under this clause 23.

24. Consequences of termination, suspension or removal



24.1 On termination of this Agreement or removal of a Program from this Agreement, the Supplier must: (a) make arrangements satisfactory to the Department for the continued provision of

Training and Assessment to Students, if any; (b) do everything the Supplier can to mitigate and lessen all losses, costs and expenses

that the Supplier may suffer in relation to the termination or removal of the Program; and

(c) promptly return the originals and destroy to the Department’s satisfaction all other copies of the Skills Assure Identifier and confirm with the Department once this has been done.

24.2 On expiry or termination of this Agreement or the removal of a Program from this Agreement, the Department may, in addition to any other right it may have to withhold Funding, withhold any Funding payable to the Supplier until: (a) the Supplier notifies all of its current students that it is no longer funded under a

Program; and (b) the Supplier provides all reasonable assistance (including, without limitation, all

assistance requested by the Department), to enable the transition of students to another Skills Assure Supplier, including ensuring that all students are issued Qualifications and Statements of Attainment in accordance with the Act; and

(c) the Department is satisfied that at the time the Training and Assessment for which Funding is claimed, was provided, and at all times during the Term: (i) the Supplier complied with its obligations under this Agreement; and (ii) there is no breach of this Agreement by the Supplier or Event of Default.

24.3 For the avoidance of doubt: (a) if this Agreement is terminated under clauses 21.1(a) or 23.1(a), no Funding is

payable to the Supplier under this Agreement other than Funding otherwise payable under this Agreement up to and including the date of termination;

(b) if a Program is removed under clauses 21.1(b) or 23.1(b), no Funding is payable to the Supplier under this Agreement in respect of that Program other than Funding otherwise payable under, this Agreement in respect of that Program up to and including the date of removal; and

(c) the Supplier must not request or receive any payment or benefit (whether monetary or otherwise) from any third party for the provision of the assistance referred to in clause 24.2(b).

25. Clauses to survive termination The following clauses will survive termination or expiration of this Agreement: (a) Clause 6 (Reporting) (b) Clause 10 (Overpayments) (c) Clause 11 (Records) (d) Clause 12 (Access to premises and records) (e) Clause 13 (Publicity) (f) Clause 15 (Insurance)



(g) Clause 16 (Indemnity) (h) Clause 17 (Personal Information) (i) Clause 21 (Consequences of termination, suspension or removal) (j) Clause 29 (Good faith) (k) Clause 30.8 (Further assurance).

26. Dispute resolution 26.1 For the purpose of this clause, a dispute will have arisen when either Party gives notice

in writing to that effect to the other party. 26.2 The parties agree to endeavour to settle any dispute arising in connection with this

Agreement in good faith by negotiation or mediation for a period of 10 Business Days (or a longer period agreed between the parties).

26.3 This clause does not apply to action by the Department under clauses 21 or 23.

27. Notices 27.1 Any notice, request, consent or approval (a ‘notice’) under this Agreement must be in

writing and may be sent by prepaid postage, email or delivered by hand to the following respective addresses: (a) for the Department - as set out in Item 1 of the Particulars; (b) for the Supplier:

(i) as set out in Item 2 of the Particulars; or (ii) an address listed in the Organisation Details for the Supplier contained in the

National VET register accessed via the website www.training.gov.au; or (c) such other address as a party may subsequently notify to the other.

27.2 A notice will be deemed to be given: (a) if posted - two days after the date of posting; (b) if delivered - on the date of delivery; or (c) if emailed - the earlier of:

(i) the time that the sender receives an automated message from the intended recipient's information system confirming delivery of the email;

(ii) the time that the email is first opened or read by the intended recipient, or an employee or officer of the intended recipient; and

(iii) two hours after the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives, within that two hour period, an automated message that the email has not been delivered, except that if that time is after 5:00 pm, the email will be deemed to be given on the next Business Day.

28. Change in control 28.1 Unless clause 28.4 applies, the Supplier must obtain the written consent of the

Department prior to any:



(a) change in the Control of the Supplier; (b) transfer of any legal or beneficial interest in any shares of the Supplier; (c) change to the Supplier’s director/s or secretary; (d) change to the Key Personnel; or (e) change to the Supplier's constitution.

28.2 The Department has an absolute discretion as to: (a) if, when and whether it consents or refuses to consent under clause 28.4; and (b) if it consents, any conditions imposed in connection with its consent.

28.3 Breach of a condition imposed by the Department on its consent under clause 28.2(b) is deemed to be a breach of this clause 28.

28.4 If the Supplier is: (a) a company listed on the Australian Stock Exchange; (b) both before and after a change in Control, the wholly owned subsidiary of a

company listed on the Australian Stock Exchange; or (c) another entity to which the Department has given notice in writing that it is not

required to comply with clause 28.1, the Supplier must immediately notify the Department of any change in Control of the Supplier including full details of the change.

28.5 For the purposes of clauses 28.1 and 28.4, a change in Control occurs if the Supplier comes under the control of a third party who did not Control the Supplier at the Commencement Date.

29. Good faith 29.1 The Supplier must act in good faith in all matters. 29.2 In performing its obligations under this Agreement, in delivering Training and

Assessment to Students under a Program and in claiming funding under this Agreement the Supplier must: (a) act honestly; (b) act reasonably; (c) act fairly; (d) act consistently with the spirit of this Agreement and the Program; and (e) act in the way that best achieves the objectives of the Program.

30. General provisions 30.1 Entire agreement - This Agreement constitutes the entire agreement between the parties

and supersedes all prior negotiations, arrangements and agreements between the parties. 30.2 No partnership or joint venture, employment or agency - This Agreement does not

create any relationship of partnership, joint venture, employment or agency between the Department and the Supplier, and the Supplier must not represent itself or allow itself or a Subcontractor to be represented as a partner or joint venturer, employee or agent of the Department.



30.3 Delay not to constitute waiver - Any failure by a party at any time to enforce a clause of this Agreement, or any forbearance, delay or indulgence granted by a party to the other, will not constitute a waiver of the party’s rights and nothing in this Agreement or arising out of or in connection with this Agreement (including entering into this Agreement) constitutes a waiver by the Department of any of its rights arising under or in connection with (including for breach of) the Expired PQS Agreement.

30.4 Waiver to be in writing - No provision of this Agreement will be deemed to be waived unless that waiver is in writing and signed by the waiving party.

30.5 Waiver limited to specific occasion - A waiver by a party of a breach of any provision of this Agreement will not operate as a waiver of any subsequent breach of the same provision or as a waiver of any other provision.

30.6 Governing law - This Agreement is governed by the laws of Queensland and each party submits to the jurisdiction of the courts of Queensland.

30.7 Severability - If any part of this Agreement is determined to be invalid, unlawful or unenforceable for any reason then that part, to the extent of the invalidity, unlawfulness or unenforceability, will be severed from the rest of this Agreement and the remaining terms and conditions will continue to be valid and enforceable to the fullest extent permitted by law.

30.8 Further assurance - The Supplier must do all things reasonably required by the Department to give effect to this Agreement.

30.9 No assignment or novation - The Supplier may not assign or novate its interest in this Agreement, except with the prior written consent of the Department, which may consent or refuse to consent in its absolute discretion.

30.10 Negation of implied terms – To the full extent permitted by law and other than as expressly set out in this Agreement the parties exclude all implied terms, conditions and warranties.

30.11 Counterparts - The parties may execute this Agreement in counterparts, each of which, taken together, will constitute one instrument. The parties may communicate their execution by posting the executed document, providing a copy of the executed document by facsimile or scanning and sending a copy of the executed document by electronic mail.

30.12 Time of the essence – Time is of the essence in respect of each obligation on the Supplier under this Agreement.

30.13 Costs – In respect of costs payable in respect of this Agreement. (a) Each party is liable for their own costs in respect of the preparation, negotiation and

execution of this Agreement. (b) The Supplier is solely liable:

(i) for any tax or duty payable in respect of any dutiable transaction under this Agreement;

(ii) any legal and administrative costs incurred by the Department in considering any application received from the Supplier (Eg. a Change in Control); and

(iii) all legal and administrative costs incurred by the Department in any enforcement or recovery action undertaken by the Department as a result of a breach of this Agreement by the Supplier.

31. Definitions and interpretation



31.1 In this Agreement the following definitions apply unless a contrary intention appears: ‘Act’ means the Further Education and Training Act 2014 (Qld). ‘Agreement’ means this document, including the Particulars, and all schedules to this Agreement such as the Delivery Schedule. ‘ASQA’ means the Australian Skills Quality Authority or such other authority, body or entity replacing or substituted for ASQA. ‘AVETMISS’ means the Australian Vocational Education and Training Management Information Statistical Standard published by the National Centre for Vocational Education Research. ‘Business Day’ means a day other than a Saturday, Sunday or public holiday in Brisbane (Queensland). ‘Claim’ includes any claim or liability of any kind (including one which is prospective or contingent and one the amount of which is not ascertained) and costs (whether or not the subject of a court order). ‘Commencement Date’ means the date specified in the Department’s letter to the Supplier advising of the Supplier’s success in obtaining Skills Assure Supplier status for the purposes of this Agreement and the date specified for each Qualification as shown on the Delivery Schedule. ‘Control’ means, with respect to an entity, the ability or capacity to determine the outcome of decisions about that entity's financial and operating policies. ‘Delivery Schedule’ means the document attached as Schedule 1 of this Agreement. ‘Department’ means the Queensland Government Department of Employment, Small Business and Training, or any other Department having responsibility for the administration of the Program in place of the Department of Employment, Small Business and Training (or in place of any successor Department). ‘Department’s Policies’ includes the Department’s policies regulating Skills Assure Suppliers and policies regulating a Program (including, without limitation, Evidence Requirements) as published from time to time on the Department’s Website. ‘Department’s Website’ means http://training.qld.gov.au or other website notified by the Department. ‘entity’ includes a corporation, a person, a partnership, an incorporated association and an unincorporated body. ‘Event of Default’ has the meaning given in clause 20. ‘Expired PQS Agreement’ means the Vocational Education and Training (VET) Pre-qualified Supplier (PQS) Agreement entered into between the Department and the Supplier prior to the date of this Agreement. ‘Expiry Date’ means the later of 30 June 2021 and the last date on which a Program the subject of this Agreement ends. ‘Funding’ means the funding assistance that the Department will, subject to the terms of this Agreement (including clause 23), provide to the Supplier under this Agreement as provided for in the Delivery Schedule.

‘Key Personnel’ means an individual:

http://training.qld.gov.au/



(a) who is concerned in or takes part in the management of the Supplier; (b) who is an employee or agent of the Supplier with duties of such responsibility that

his or her conduct may fairly be assumed to represent the Supplier in relation to its business;

(c) who exercises a degree of control or influence over the management or direction of the Supplier including those who participate in making decisions that affect the business of the applicant or who has the capacity to significantly affect the future operations and financial standing;

(d) who has the ability or capacity to determine the outcome of decisions about the financial and operating policies of the Supplier.

‘KPIs’ means Key Performance Indicators specified for a Program in the Department's Policies relating to the Program. ‘NVR Act’ means the National Vocational Education and Training Regulator Act 2011. ‘Particulars’ means the table of particulars at the start of this Agreement, page 3. ‘Performance Standard’ means a Performance Standard specified in the Department’s Policies. ‘Performance Review’ means any activity undertaken by the Department to review and assess the performance of the Supplier under this Agreement. ‘Personnel’ means all employees, contractors, agents and officers of the Supplier engaged in delivering the Services from time to time and includes Key Personnel. ‘Personal Information’ means information or an opinion (including information or an opinion forming part of a database), whether true or not and whether recorded in a material form or not, about an individual whose identity is apparent or can reasonably be ascertained, from the information or opinion. ‘Program’ means the Department’s program of funding the delivery of Training and Assessment specified in item 3 of the Particulars of this Agreement and any other Program subsequently added to this Agreement (as per the Delivery Schedule). ‘Qualification’ has the meaning assigned to that term in the NVR Act and VET Qualification has the same meaning. ‘Qualified Accountant’ has the meaning given in the Corporations Act 2001 (Cth). ‘Registered Training Organisation’ or ‘RTO’ has the meaning given to Registered Training Organisation as defined in the NVR Act. ‘SAS’ has the meaning given to it in the Background of this agreement. ‘Services’ means Training and Assessment and any other deliverable of the Supplier under this Agreement or the Department’s Policies. ‘Skills Assure Identifier’ means the Skills Assure Identifier logo, document, file, record, electronic image, stored by any means which is given to the Supplier by the Department in accordance with clause 13 for the purposes of delivering the Services, ‘Statement of Attainment’ has the meaning given in the NVR Act. ‘Student’ means a person (being an individual) who is eligible under the Program, is enrolled in the Program with a SAS and has commenced training.



‘Subcontractors’ means an entity that is a party (other than the Supplier) to a Third Party Arrangement. ‘Supplier’ means the person named as the Supplier in the Particulars. ‘Suspend Funding’ means the Department notifying the Supplier that it will not pay the whole or any part of the funding to the Supplier in respect of the Supplier’s delivery of Training and Assessment during the Suspension Period. ‘Suspension Period’ means the period described in the Department’s Notice (being a period before and/or after the date of the Department's Notice) for which funding will not be provided for Training and Assessment delivered by the Supplier to its Students. ‘Term’ means the term of this Agreement as set out in clause 1. ‘Third Party Arrangement’ means: (a) a subcontract for delivery of any part of the Services; and (b) the arrangements described as “Third Party Arrangements” in the Standards for

Registered Training Organisations 2015 and any updated or replacement guides or fact sheets published by ASQA from time to time.

‘third party’ means any entity other than the Supplier. ‘Training and Assessment’ means: (a) vocational education and training in accordance with the VET Quality Framework

provided in Queensland by the Supplier; (b) assessment provided in Queensland by the Supplier to a Student in accordance with

the VET Quality Framework and the NVR Act; (c) services to Students incidental to and supporting of the provision of the activities in

paragraphs (a) and (b); and (d) where Services are delivered under the User Choice Program, off-the-job vocational

education and training and assessment provided in Queensland by the Supplier to a student in accordance with the Training Contract and Training Plan (as defined in the Act) for the student and the Act.

‘Unit of Competency’ means the specification of industry knowledge and skill and the application of that knowledge and skill to the standard of performance expected in the workplace. ‘Variation Application’ has the meaning given to it in clause 3. ‘Variation Notice’ has the meaning given to it in clause 3. ‘VET Quality Framework’ has the meaning given to it in the NVR Act and means the set of standards and conditions that ASQA uses from time to time to assess whether an RTO meets the requirements for registration and, as at the date of this Agreement, comprises the following: (a) Standards for National VET Regulator Registered Training Organisations; (b) Australian Qualifications Framework; (c) Fit and Proper Person requirements; (d) Financial Viability Risk Assessment requirements; and (e) Data Provision requirements.



31.2 In this Agreement: (a) words importing a gender include any other gender; (b) words in the singular include the plural and vice versa; (c) all dollar amounts refer to Australian currency; (d) a reference to any legislation includes any subordinate legislation made under it and

any legislation amending, consolidating or replacing it; (e) a reference to the VET Quality Framework documents and AVETMISS documents

includes documents amending or replacing those documents; (f) a reference to an individual or person includes a corporation or other legal entity; (g) a reference to ‘consent’ means prior written consent; (h) clause headings have been included for convenience of reference only and are not

intended to affect the meaning or interpretation of this Agreement; and (i) if any expression is defined, other grammatical forms of that expression will have

corresponding meanings.

31.3 If the Supplier comprises two or more persons, this Agreement will bind them jointly and each of them severally.

31.4 The terms of this Agreement prevail to the extent of any inconsistency between the terms of this Agreement and the terms of the Department’s Policies.



EXECUTED AS A DEED on the dates set out below

Documents

Skills Assure Supplier Agreement (for User Choice program) · Skills Assure Supplier Agreement Page 7 of 30 Department of Employment, Small Business and Training– Version 1, template