1. Access to the School

(a) The Provider will carry out the Services at the School according to this Agreement (and any schedules to this Agreement). The Provider (and its Personnel) must provide the Services:

in accordance with all applicable laws and regulatory requirements, relevant Australian industry standards, best practice and guidelines and all licences and consents;
with due care, skill and diligence; and
in a proper and professional manner.

Personnel means a Party’s officers, employees, agents, contractors, volunteers and subcontractors (provided that neither party is the Personnel of the other party).

(b) If the Provider (or its Personnel) will be delivering the Services on the School site, the Provider must not provide any Services until the Provider (and its Personnel) has completed an induction program. The School will notify the Contractor of details of the induction program.

(c) If the Provider (or its Personnel) will deliver the Services to students, the Provider must not provide any Services until the Provider (and its Personnel) has completed the Department’s Mandatory Child Protection Training online, or a suitable alternative training program delivered by the Provider for its staff (see Attachment A).

(d) Where required by the Department or the School, the Provider (and its Personnel) must, complete relevant health care training specific to a student’s health care needs, including the Australasian Society of Clinical Immunology and Allergy (ASCIA) Schools and Childcare Anaphylaxis e-training (see Attachment A). Evidence of this training must be provided to the School prior to delivering any Services at the School.

(e) The Department or the School will not be liable for provider costs associated with meetings to discuss Service delivery arrangements and School induction.

(f) This Agreement commences on the date that it is signed by both parties and continues for the duration set out on the cover page, unless ended earlier or extended.

(g) While on the School site, the Provider will:

not bring upon the School site, or permit to be done any act, matter or thing which may be a nuisance or inconvenience, or cause damage or annoyance at the School;
not bring upon the School site, or permit to be done any act, matter or thing which may breach any law or requirement of any competent authority in force at the time, with regard to the conduct of the Services from the Premises;
ensure that no part of the School is damaged or services interrupted because of their acts or omissions, including in their conduct of the Services, and rectify (at their expense) any such damage;
ensure it does not leave any rubbish at the School unless it is properly disposed of;
take reasonable steps to report any unruly behaviour by any person which may cause damage to any person or property, provided in its reasonable opinion it is safe to do so;
ensure it does not access parts of the School, except for the areas necessary to carry out the Services, and as agreed with the School;
park any motor vehicle at the School entirely at its own risk and only with the prior permission of the School Principal;
not attend the School on a scheduled day if the School, in its discretion, advises that its attendance on that day is dangerous or not in the best interests of the School;
not attend the School on any day that the School is closed for any reason; and
comply with any reasonable Departmental and School direction, including those related to Health and Safety and COVID-19.

2. Fee, use of facilities and costs

(a) In consideration of this Agreement, the Provider shall pay the Department the fee set out in the table on the first page of this Agreement. The School will not charge for the use of the School’s facilities, unless otherwise agreed to in writing.

(b) If circumstances arise which generate costs that the Department or School reasonably believe were not contemplated, then the School will provide the Provider with written notice of such costs. The School and Provider will then, in good faith, meet to determine the allocation of these costs between the parties.

3. Conflict

(a) The Provider warrants that to the best of its knowledge, information and belief, no conflict of interest exists or is likely to arise in the performance of its obligations under this Agreement.

(b) If an actual, perceived or potential conflict arises, the Provider will immediately notify the School Principal, in writing, fully detailing the conflict. The School will then determine how to deal with the conflict.

4. Child protection

(a) The Provider acknowledges that it is, and its Personnel are, aware of the requirements of the Child Protection (Working with Children) Act 2012 (NSW) and all related laws concerning child protection (Child Protection Laws). The Provider will ensure that it (and its Personnel) comply with the requirements of the Child Protection Laws and policies of the Department relating to child protection, as notified to the Provider from time to time.

(b) The Provider must, at the Provider’s expense, certify that the Provider and the Provider’s Personnel are not a prohibited person under any Child Protection Laws and undergo any other screening, such as the ‘Working with Children Check’, as required under Child Protection Laws or by the School or Department. Any of the Provider’s Personnel that is a disqualified person under any Child Protection Laws must not be engaged in child-related work.

(c) The Provider is to immediately advise the Department if it becomes aware that it (or its Personnel) are the subject of a reportable allegation involving children.

(d) The Provider (and its Personnel) must immediately notify the School of any matters it becomes aware of which may impact the welfare or safety of a student. Such notification must be given to a person at the School in a position to take appropriate action, such as the School Principal. The Provider must then take reasonable steps to follow up and ensure that appropriate action is being considered or taken by the School.

(e) The Provider must also immediately notify the Department’s Probity Unit via email at NTBE@det.nsw.edu.au if it receives advice from the Office of the Children’s Guardian that a person in their employ or an individual the Provider has engaged to deliver the Services to a student has had their Working With Children Check (WWCC) clearance CLOSED, CANCELLED or BARRED.

(f) In making the above notifications, the Provider (and its Personnel) must comply with the requirements of a ‘prescribed body’, as set out in chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and its regulations.

(g) The Provider (and its Personnel) must provide to the School information relating to, or to assist with, investigations into alleged breaches of the Code of Conduct or reportable conduct allegations.

5. Important notifications concerning serious criminal offences

(a) The Provider must immediately notify the School and the Department’s Probity Unit (NTBE@det.nsw.edu.au) of any charges or allegations, including pending court proceedings related to sexual offences and serious criminal offences in Australia or overseas, as listed in Schedule 2 of the Child Protection (Working with Children) Act 2012 (NSW) concerning the Provider or its Personnel.

(b) A ‘serious criminal offence’ for the purpose of clause 5(a) means any offence punishable by imprisonment of more than 6 months.

6. Termination

(a) Either party may terminate or suspend, in whole or in part, this Agreement at any time for any or no reason by notice in writing to the other party.

7. Indemnity

(a) The Provider indemnifies the Minister for Education and Early Learning and the State of New South Wales (including their officers and employees) against all claims, losses, liabilities, damages, costs and expenses of any kind suffered or incurred relating to:

personal injury or death or property loss or damage arising out of or in connection with the Services: and
personal injury or death or property loss or damage within or outside the School occasioned or contributed to by an act or omission by the Provider; and
the Provider’s (including its officers, employees, contractors and agents) negligent, unlawful or wilful act or omission.

(b) The Provider’s liability under this indemnity will be reduced to the extent the Department contributed to the claims, losses, liabilities, damages, costs and expenses.

8. Insurances

(a) The Provider will take out and maintain for the duration of this Agreement:

workers compensation insurance: workers compensation or equivalent insurance as required under law;
public liability insurance: a public liability insurance policy providing cover for not less than $20 million for any one occurrence; and
professional indemnity insurance: a professional indemnity insurance policy for not less than $2 million.

(b) The Provider will provide to the School or Department, where appropriate, evidence of currency of all insurances. Despite any receipt by the Department of, or failure by the Department to request a CoC or other document purporting to evidence the terms or currency of an insurance policy required by this Agreement, the Provider remains at all times responsible for complying with the insurance provisions of this Agreement.

9. Student and School information, including disclosing information

(a) The Provider (and its Personnel) may receive, in connection with this Agreement, confidential and sensitive information relating to students (and their families) and the School. Subject to this clause 9, the Provider (and its Personnel) must keep such information confidential and not disclose it to other third parties without the School’s written approval or unless required by law.

(b) The Provider must:

put together and maintain effective security measures to keep the information secure; and
tell the School immediately if it becomes aware of any suspected or actual unauthorised use or disclosure of such information.

(c) The Provider must obtain written consent from the parent or carer of the student named in the Service Schedule, or from the student (if aged 14 years or over and is capable of giving informed consent), to allow the Provider to provide the School with an update, using the Service Update Form provided in Form 2 of Attachment B. When requesting such consent, the Provider must inform the parent, carer or student that:

i. the purpose for disclosing such information is for the School to ensure that strategies and supports provided by staff at the School align with the Services delivered to the student by the Provider; and

ii. a copy of their written consent will be provided to the School by the Provider.

(d) Where a student aged 14 years or over provides their own consent to receive the Service, the Provider must:

i. ensure that the student is capable of giving informed consent in accordance with the applicable laws and professional standards;

ii. obtain and record evidence of the student’s informed consent prior to entering into this Agreement; and

iii. notify the Principal that valid consent has been obtained to deliver the Service to the student at the School.

To be clear, the Provider is responsible for the assessment of whether a student aged 14 years or over is capable of providing informed consent as a mature minor, in accordance with the applicable laws and professional standards, and will notify the School of the outcome of the assessment.

(e) Once consent referred to in clause 9(c)(ii) or 9(d) is obtained, the Provider will:

i. Complete, or have an individual engaged by the Provider to deliver services to the student complete, a Service Update Form in the form set out in Form 2 in Attachment B; and

ii. Provide the completed Service Update Form to the School Principal within five (5) business days of receiving the School’s request for the form. To be clear, it will be at the School’s sole discretion to determine when they require the Provider to provide a Service Update Form.

10. Policies

The Provider must ensure that it and its Personnel engaged in the delivery of the Services comply with all of the Department’s and School’s policies that are given or referred to the Provider by the School from time to time. This will include policies relating to conduct (including the Code of Conduct), security and safety, including those policies, procedures and guidelines referred to in Attachment A.

11. Record keeping

(a) The Provider must, including as required by laws and regulatory requirements, keep detailed service records and other information relevant to the Services.

(b) The Provider must keep such records until 6 years from ending of this Agreement. To be clear, the requirement under this clause is independent of any other obligations the Provider may have at law. Where the Provider is required by law to keep records for 25 years, the Provider is solely responsible for complying with that obligation.

(c) The Provider must provide to the School copies of all records relating to the Services delivered to the student, as and when requested by the School, except in circumstances where a parent/carer has not given consent for a particular record to be provided to the School.

(d) Where a parent/carer has not given the Provider consent to share a particular record with the School, the Provider is solely responsible for ensuring that the record is not shared with the School, unless required or permitted by law, and must inform the School accordingly.

12. Privacy

The Provider (and its Personnel) may receive Personal Information (as defined in the Privacy Act 1988 (Cth)) and the Privacy and Personal Information Protection Act 1998 (NSW) (PIPP Act) from the School. The Provider may also receive Health information from the School, as defined in the Health Records and Information Privacy Act 2002 (NSW). The Provider (and its Personnel) must comply, in respect of such Personal Information and Health information, with the:

Australian Privacy Principles under the Privacy Act 1988 (Cth);
Information Privacy Principles under the Privacy and Personal Information Protection Act 1998 (NSW); and
Health Privacy Principles under the Health Records and Information Privacy Act 2002 (NSW) as if it is a ‘public sector agency’ in relation to any Personal or Health Information it handles in relation to this Agreement.

The Department will collect, use, store and disclose the Personal Information of the Provider for purposes directly related to the administration of this Agreement, and in accordance with the PPIP Act and the Department’s Privacy standards. The Provider has the right to access and amend their Personal Information held by the Department, in accordance with the applicable privacy laws.

13. Publicity and use of name

The Provider must not disclose, distribute or otherwise communicate any media release, promotional material, advertising or publicity relating to this Agreement, their relationship or otherwise refer to the Department including the School (including use of any logos) without the School’s written approval.

14. Provider is a government entity

If the Provider is a NSW government department or agency or entity, then the following clauses will not apply:

clause 7 (Indemnity)
clause 8 (Insurance); and
clause 16 (Disputes).

15. Subcontracting

The Provider must not subcontract any work under this Agreement in whole or part.

16. Complaints, grievances and dispute resolution

a) The Provider must, in the first instance, inform the School principal on becoming aware of any issue, complaint, conflict or grievance about the Provider, the School (including its staff and students), any school operational matters, or in connection with the Provider’s Services. The Provider must work with the School principal to understand the School’s and the Department’s procedures for managing such incidents.

(b) Such issues, complaints, conflicts or grievances will be dealt with by the School principal, in consultation with the Provider, in line with the Department’s complaints policies and procedures. To be clear, the Provider must consult with the School principal and comply with the School Principal’s reasonable directions before any issue, complaint, conflict or grievance is referred to anyone else.

(c) Child protection related complaints will be dealt with in line with the Department’s Responding to Allegations Against Employees in the Area of Child Protection Policy.

(d) The parties must settle any dispute arising out of this Agreement, except where urgent relief is required, as follows:

a party claiming that a dispute has arisen must give a written notice to the other party, giving details of the dispute;
after a written dispute notice has been sent, the matter will be referred to each party’s senior officers who will attempt to resolve the dispute in good faith.

17. General

(a) The main terms and conditions of this Agreement will take priority to the extent of any inconsistency with the Additional Terms.

(b) A notice or communication has no effect unless it is in writing and sent by email, post or delivered to the addressee.

Each party’s address and email details are on page 2. A party can change its details by giving notice of it to the other party.
A notice is received: if sent by email at the time the email is sent if there is no delivery failure report; if sent by post 3 business days after posting; or if delivered when it is left at the address.

(c) A party may give or not give an approval or consent in its absolute discretion (without reasons), unless stated otherwise.

(d) This Agreement is the entire Agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior Agreement or understanding.

(e) Clauses 2, 5, 7, 9, 11, 12, 13, 16, and 17 survive the end of this Agreement.

(f) If any clause of this Agreement is illegal or unenforceable it is to be severed. The rest of this Agreement will not be affected.

(g) If a party has a right arising from the other’s failure, the delay in exercising that right does not waive any rights.

(h) Any change to this Agreement is only effective if in writing.

(i) The Provider must not assign any of its rights or obligations without the School’s written consent which may be given or withheld at its absolute discretion.

(j) The law of NSW Australia governs this Agreement. The parties submit to the exclusive jurisdiction of its courts.

(k) The covenants implied into licences by legislation are excluded.

(l) Both parties agree that this Agreement may be electronically executed via a suitable application, and that any electronic signatures are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

(m) A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for drafting it or this Agreement.

External Provider Engagement Agreement

Forest Hill Public School