The National Diabetes Services Scheme Agreement
1. Interpretation
Up to National Diabetes Services Scheme
THIS Agreement is made
between theCOMMONWEALTH OF AUSTRALIA (‘the Commonwealth) as represented by the Department of Health and Ageing (the ‘Department’) ABN 83 605 426 759;
and Diabetes Australia, ABN 47 008 528 461, having its registered office at 5th floor, 39 London Circuit, Canberra ACT 2600 ('Diabetes Australia’)
WHEREAS:
- Through the National Diabetes Services Scheme, the Commonwealth and Diabetes Australia aim to enhance the capacity of people with diabetes to understand and manage their life with diabetes, and in this way to assist them to live a life in which the impact of diabetes is minimised and in which their overall health outcome is improved.
- This will be achieved through the National Diabetes Services Scheme by ensuring that persons with diabetes have timely, reliable and affordable access to the supplies and services required for the effective self management of their condition.
- The Commonwealth wishes to fund Diabetes Australia to administer the National Diabetes Services Scheme on behalf of the Commonwealth on the terms and conditions of this Agreement.
- Section 9C of the National Health Act 1953 allows the Minister for Health and Ageing to enter into an arrangement with a body corporate established for a public purpose under a law of a State or Territory for and in relation to the supply of medical or surgical aids, equipment or appliances prescribed for the purposes of paragraph 9A(1)(a) to persons who require them.
- An arrangement made in accordance with section 9C of the National Health Act 1953 can deal with the transfer of ownership to the body corporate of medical or surgical aids, equipment or appliances owned by the Commonwealth.
- This Agreement constitutes an arrangement under section 9C of the National Health Act 1953.
- Diabetes Australia recognises the need for proper accountability for the administration of the National Diabetes Services Scheme and for the use and expenditure of the Funds provided by the Commonwealth for the National Diabetes Services Scheme, and agrees to accept responsibility for the administration of the National Diabetes Services Scheme and the Funds on the terms and conditions of this Agreement.
- An intention of the Department is to transfer the ownership of Products to Diabetes Australia in a way that does not disadvantage Diabetes Australia. The way to achieve this will be the outcome of a review to be completed within 12 months of the execution of this Agreement.
THE PARTIES AGREE as follows:
1. Interpretation
In this Agreement, unless the contrary intention appears:Agent means any organisation engaged by Diabetes Australia to provide Services under the Scheme;
Agreement means this document and includes any schedules and annexures;
Approved Auditor means a person who is:
- registered as a company auditor under the Corporations Act 2001 or a member of the Institute of Chartered Accountants in Australia, or of CPA Australia or the National Institute of Accountants; and
- not a principal, member, shareholder, office holder or employee of Diabetes Australia;
Asset means an item of tangible property purchased or leased either wholly or in part with the use of the Funds, with a value of $5,000.00 or more, inclusive of GST but does not include Products or Scheme Material;
Auditor-General means the office established under the Auditor-General Act 1997 and includes any other person that may, from time to time, perform the functions of that office;
Australian Accounting Standards means the standards of that name maintained by the Australian Accounting Standards Board created by section 226 of the Australian Securities and Investments Commission Act 2001;
Australian Auditing Standards means the standards set by the Auditor-General under section 24 of the Auditor-General Act 1997 and generally accepted audit practices to the extent they are not inconsistent with such standards;
Business Day means, in relation to the doing of any action in a place, any day other than a Saturday, Sunday, or public holiday in that place;
Committed in relation to Funds means Funds that can be identified in legally binding contractual arrangements between Diabetes Australia and other parties engaged to provide goods or services in relation to the Services, and Funds that have been set aside by Diabetes Australia to make legitimate provision for future statutory and other liabilities;
Commonwealth Contact Officer means the person or position holder specified in Schedule 10, or any other person notified to Diabetes Australia by the Commonwealth for this purpose;
Commonwealth Material means any Material:
- provided by the Commonwealth to Diabetes Australia for the purposes of this Agreement; or
- copied at any time from the Material referred to in paragraph (a);
Confidential Information means information that:
- is by its nature confidential;
- is designated by the Commonwealth as being confidential; or
- Diabetes Australia knows or ought to know is confidential;
but does not include information which: - is or becomes public knowledge, other than by breach of this Agreement;
- is in the possession of Diabetes Australia without restriction in relation to disclosure before the date of receipt from the Commonwealth; or
- has been independently developed or acquired by the receiving Party.
Consumer Price Index in relation to a quarter means the All Groups Consumer Price Index number that is the weighted average of eight capital cities published by the Australian Statistician in respect of that quarter;
Conflict includes any conflict of interest, any risk of a conflict of interest and any apparent conflict of interest arising through Diabetes Australia (or its officers, employees, servants, agents) engaging in any activity or obtaining any interest that is likely to conflict with or restrict Diabetes Australia in performing the Scheme fairly and independently;
Department includes any department or agency of the Commonwealth which is from time to time responsible for the administration of this Agreement;
Depreciated means the amount representing the same reduced value of an Asset as calculated for income tax purposes under, and in accordance with, the Income Tax Assessment Act 1997;
Diabetes means Type 1 (formerly known as Insulin Dependent Diabetes Mellitus or IDDM), Type 2 (formerly known as Non-Insulin Dependent Diabetes Mellitus or NIDDM), Gestational Diabetes, Other Diabetes caused by other identifiable etiologies, including :
- genetic defects of beta cell function (eg MODY 1,2,3);
- genetic defects in insulin action;
- diseases of the exocrine pancreas (eg, cancer of the pancreas, cystic fibrosis, pancreatitis);
- endocrinopathies (eg, Cushing’s);
- drug or chemical induced (eg, steroids);
- infection (eg, rubella, Coxsackie, CMV);
- uncommon forms of immune-related diabetes; or
- other genetic syndromes;
(Classification of diabetes World Health Organisation/American Diabetes Association June 1997);
Diabetes Australia Contact Officer means the person or position holder specified in Schedule 10, or any other person notified to the Department by Diabetes Australia for this purpose;
Diabetes Centre means a discrete unit comprising an interdisciplinary team of health professionals who provide information and clinical services to people with diabetes. The staff of a Diabetes Centre must include a medical practitioner with expertise in diabetes care;
Existing Material means all Material in existence prior to the commencement of this Agreement:
- incorporated in;
- supplied with, or as part of; or
- required to be supplied with, or as part of:
the Scheme Material and includes any Material identified as Existing Material in Schedule 10;
Final Report means Material provided to the Commonwealth in accordance with Schedule 11;
Force Majeure Event means an event relating to a Party which:
- was not contemplated by that Party and could not have reasonably been foreseen by that Party at the commencement of this Agreement;
- is completely outside the control of that Party, its employees, officers and Agents;
- is not an event or occurrence contemplated by, or referred to in, this Agreement;
- is not caused by the other Party its employees, officers and Agents to this Agreement; and
- is not a result of industrial action or strike;
Funds means the amount payable by the Commonwealth or part thereof in accordance with Schedule 2;
Health Professional Arm of Diabetes Australia means the committee formed by members of the Australian Diabetes Society and the Australian Diabetes Educators Association;
Intellectual Property includes all copyright (including rights in relation to phonograms and broadcasts), all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered designs and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
Interest means interest calculated at the 90 day bank-accepted bill rate (available from the Reserve Bank of Australia) less 10 basis points;
Material includes documents, software (including source code and object code), goods and information and data stored by any means including all copies and extracts of the same;
Other Contributions means Registrant Contributions and other financial or in-kind resources (with in-kind resources valued at market rates) from third parties or Diabetes Australia for the Scheme, other than the Funds;
Outlet means a place where Registrants can purchase Product or obtain information in relation to the Scheme;
PhARIA means the Pharmacy Access/Remoteness Index of Australia that provides a pharmacy specific measurement of remoteness for 3855 localities around Australia.
The index results, ranging from 0 (high accessibility) to 12 (high remoteness), have been divided into a 6 category classification system as follows:
| Category 1 | 0 - 1 | Highly Accessible |
| Category 2 | >1 - 2 | Accessible (Group A) |
| Category 3 | >2 - 4 | Accessible (Group B) |
| Category 4 | >4 - 6 | Moderately Accessible |
| Category 5 | >6 - 9 | Remote |
| Category 6 | >9 - 12 | Very Remote |
Party means a party to this Agreement;
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 a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion;
Privacy Commissioner means the office established under the Privacy Act 1988 and includes any other person that may, from time to time, perform the functions of that office;
Product means a product to be supplied under the Scheme, as identified in Schedule 3;
Registrant means a person registered under the Scheme;
Registrant Contributions means Registrant Contributions as referred to in Schedules 2 and 3;
Report means a report in accordance with Schedule 11;
Scheme means the National Diabetes Services Scheme described in Schedule 1;
Scheme Material means all Material including Reports:
- brought into existence for the purpose of performing the Scheme;
- incorporated in, supplied or required to be supplied along with the Material referred to in paragraph (a); or
- copied or derived from the Material referred to in paragraphs (a) or (b);
and includes the Scheme Material specified in Schedule 10;
Scheme Period means the period specified in Schedule 10;
Services means the services to be performed by Diabetes Australia under the Scheme as specified in Schedule 1; and
Sub-agent means any organisation engaged by an Agent to provide Services under the Scheme;
Sub-agent Connectivity means the Diabetes Australia project known as Sub-agent Connectivity, which has as its purpose the implementation of a direct connectivity, via a web front end, to the Scheme information system in order to allow accessing and processing of Registrants, sales and stock information via electronic means;
Unit of Product means the products in the quantities itemised in Annexure 2 in the column headed ‘Pack Size’ for insulin syringes/needles/pump attachments and in the column headed ‘PBS Max Qty’ for diagnostic agents, which is the maximum quantity defined in the Schedule of Pharmaceutical Benefits.
1.2 In this Agreement, unless the contrary intention appears:
- words in the singular include the plural and words in the plural include the singular;
- words importing a gender include any other gender;
- words importing persons include a partnership and a body whether corporate or otherwise and vice versa;
- where any word or phrase is given a defined meaning, any other form of that word or phrase has a corresponding meaning;
- an uncertainty or ambiguity in the meaning of a provision of this Agreement will not be interpreted against a Party just because that Party prepared the provision;
- reference to any statute or other legislation (whether primary or subordinate) is to a statute or other legislation of the Commonwealth and, if it has been or is amended, is a reference to that statute or other legislation as amended;
- all references to clauses are to clauses in this Agreement, all references to “Items” are to Items in the Schedule to this Agreement and any references to “Schedule” are to the Schedules to this Agreement.
1.3 If there is any conflict or inconsistency between:
- the terms and conditions contained in the clauses of this Agreement and any part of the Schedules, then the terms and conditions of the clauses will prevail to the extent of the conflict or inconsistency;
- the terms and conditions contained in the clauses of this Agreement and any part of the annexures (if any), then the terms and conditions of the clauses will prevail to the extent of the conflict or inconsistency; and
- any part of the Schedule and any part of the Annexures, then the Schedule will prevail to the extent of the conflict or inconsistency.
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1.4 The laws of the Australian Capital Territory apply to this Agreement. The Parties agree to submit to the non-exclusive jurisdiction of the courts of the Australian Capital Territory in respect of any dispute under this Agreement.
1.5 This Agreement records the entire agreement between the Parties in relation to its subject matter.
1.6 Subject to clauses 2 and 17, no variation of this Agreement is binding unless agreed in writing between the Parties.
1.7 If a court or tribunal says any provision of this Agreement has no effect or interprets a provision to reduce an obligation or right, this does not invalidate any other provision.
1.8 If a Party does not exercise, or delays in exercising, any of its rights under this Agreement or at law, that failure or delay does not operate as a waiver of those rights.
1.9 A single or partial exercise by a Party of any of its rights under this Agreement or at law does not prevent the further exercise of any right.
1.10. Diabetes Australia cannot assign its obligations, and agrees not to assign its rights, under this Agreement without, in either case, prior approval in writing from the Commonwealth.
