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Memorandum of Understanding The Victims Services website has moved. Please select this link to access the new site, or wait to be re-directed in 5 seconds. DIRECTOR OF VICTIMS SERVICES (“Director”) and (Name of “Authorised Report Writer”) MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING is made the.............................day of...................................2001. BETWEEN DIRECTOR OF VICTIMS SERVICES for and on behalf of the State of New South Wales (the “Director”) AND (the “Authorised Report Writer”) IT IS AGREED AS FOLLOWS: 1. DEFINITIONS "Authorised Report Writer" means the person party to this MOU who will perform the Services; "Contract Material" means material brought into existence solely for the purposes of performing the Services and includes any Reports, documents, information, data whether in electronic or hard copy format; "Director" means the party to this MOU who engages the Authorised Report Writer; "Director's Materials" means any documentation, information or material supplied by the Director or the Victims Compensation Tribunal to the Authorised Report Writer by whatever means; "Fee" means the fee as referred to in Clause 5 and Schedule 3 of this MOU; "Intellectual Property" means all rights in copyright, patents, registered and unregistered trademarks, registered designs, trade secrets and all other rights of intellectual property as recognised by the law in force in New South Wales; "MOU" means this document including all Schedules and Annexures; “Professional Advisory Panel” means the panel established to provide recommendations to the Director in relation to the establishment and maintenance of the list of Authorised Report Writers. "Report" means any written requested or sought from by the Authorised Report Writer in the performance of the Services; "Schedule" will be taken to include all its parts (if any); "Services" means the services described in Schedule 2; "Victim" means the subject of a Report; "Victims Compensation Tribunal" means the Tribunal established by the Victims Compensation Act 1996 as amended. 2. PERIOD 2.1 The Authorised Report Writer agrees to provide the Services in accordance with the terms and conditions of this MOU commencing on 7 April 1999. 3. AUTHORISED REPORT WRITER'S OBLIGATIONS Due Diligence 3.1 The Authorised Report Writer must perform the Services in a diligent manner and with all necessary skill and care expected in accordance with the provision of such Services and in accordance with all representations and warranties as to the Authorised Report Writer's experience and ability, expressly or impliedly made by reference to this MOU, or by law. 3.2 Timely Provision of Services 3.2.1 The Authorised Report Writer must perform the Services and provide the relevant Report to the Victims Compensation Tribunal expeditiously and in accordance with the time limits specified in Schedule 2 or as determined and directed by the Director on a case by case basis. 3.3 Director's Materials (a) The Authorised Report Writer accepts all responsibility for the secure guardianship of the Director's Materials, if any, to the Authorised Report Writer. (b) Upon completion or termination of this MOU, the Authorised Report Writer must as soon as practicable return to the Director and Victims Compensation Tribunal any Director’s Materials and any Contract Material. (c) Clause 3.3(b) does not operate to prevent the Authorised Report Writer from keeping a bona fide copy of the Contract Materials for its records subject always to Clause 3.5. 3.5 Confidentiality The Authorised Report Writer must not without the prior written consent of the Director disclose any information or Report in connection with the Services or this MOU to any person other than: (a) the Victim or, with the consent of the Victim, their legal representative; (b) as necessary to perform the Services and/or for the purposes of disclosure of the Report to the Victims Compensation Tribunal or the Director; (c) with respect to any matter already within public knowledge except by a breach of this MOU, (d) other than as required to be disclosed by law; and it is agreed that this obligation survives completion or termination of this MOU. 3.6 Sub-contracting (a) The Authorised Report Writer must not assign or sub-contract any part of the Services without the prior written consent of the Director. (b) Consent given by the Director in accordance with this clause does not relieve the Authorised Report Writer from its obligations under this MOU. 3.7 Statutory and other Professional Requirements 3.7.1 Without limiting the generality of any other provision of this MOU the Authorised Report Writer must ensure that all work done in connection with the Services:
3.7.3 The Authorised Report Writer must for the term of this MOU undertake continuing professional development training as required to maintain his or her professional registration. 3.8 Conflict of Interest (a) The Authorised Report Writer warrants that it has no actual or potential conflict of interest at the date of this MOU which would affect the performance of the Services and has disclosed to the Director anything or any matter which would materially affect the provision of the Services to the standard required by a member of the Royal Australian College of Psychiatrists or or NSW Psychologists Registration Board. (b) Immediately upon becoming aware of the existence, or possibility of a conflict of interest affecting the Authorised Report Writer, the Authorised Report Writer must advise the Director in writing, in which event, the Director reserves its rights under Clause 11. 3.9 Consultation with Professional Advisory Panel and Director 3.9.1 The Authorised Report Writer must, upon reasonable notice from the Director, be available for consultation with the Professional Advisory Panel and Director for the purposes of inspection, discussion, assessment or review the provision of the Services by the Authorised Report Writer. 3.9.2 The Authorised Report Writer must promptly provide information, assistance or clarification reasonably requested by the Director, Professional Advisory Panel or Victims Compensation Tribunal. 3.9.3 The Authorised Report Writer will not be entitled to any Fee under clause 5 for assistance provided to the Director, Professional Advisory Panel or Victims Compensation Tribunal in accordance with subclause 3.9.2 except if the Authorised Report Writer is requested by the Director to appear before the Victims Compensation Tribunal as an expert witness. 4. DIRECTOR'S OBLIGATIONS 4.1 Provide Information The Director will as soon as practicable, or as required by this MOU, make available to the Authorised Report Writer all relevant instructions, information, documentation or data or any other material as required for the performance of the Services. 5. FEES 5.1 The Director will pay the Fee in accordance with Schedule 3, subject to the conditions of this MOU. 5.2 Except as provided in Schedule 3, the Authorised Report Writer may not seek compensation or payment for any other fees or expenses without the prior written approval of the Director. 6. COPYRIGHT AND INTELLECTUAL PROPERTY 6.1 Ownership (a) Clause 6.1(b), ownership of Intellectual Property not in existence as at the date of this MOU in Contract Material created in pursuance of performance of the Services under this MOU vests, upon its creation in the Director. The Authorised Report Writer must, as and when requested by the Director, do all things necessary to vest ownership and title of the Intellectual Property in the Director. (b) If ownership of or title in Intellectual Property in relation to Contract Material is not capable of being vested in the Director under Clause 6.1(a) because the Authorised Report Writer itself does not own that Intellectual Property, the Authorised Report Writer must at its cost ensure that the Director is suitably and irrevocably licensed to use that Contract Material or that Intellectual Property. (c) The Authorised Report Writer must ensure all licence fees and/or consents required under law are paid and/or obtained in connection with any reproduction, adaption or use of any Intellectual Property or Contract Material necessary in the provision of the Services. (d) The Authorised Report Writer warrants that any Report or Contract Material will not breach the Intellectual Property rights of any third party and the Authorised Report Writer indemnifies and will keep indemnified the Director and Victims Compensation Tribunal from and against any loss (including legal expenses) or liabilities reasonably incurred or suffered arising from any suit, action or proceeding by any person for alleged or actual infringement of any other person’s Intellectual Property rights. 6.2 Delivery of Contract Material (a) As soon as practicable after termination of this MOU, the Authorised Report Writer must deliver to the Director all Contract Material and all the Director's Materials. (b) Subject to Clause 3.5, Clause 6.2(a) does not operate to prevent the Authorised Report Writer from keeping a bona fide copy of the Contract Material for its own records. 7. EXCLUSIONS 7.1 The Director and the Victims Compensation Tribunal make no express or implied representations or warranties: (i) that the Authorised Report Writer will be called upon to provide the Services or any Reports during the term of this MOU; or (ii) the frequency, if any, of the Services to be performed or Reports to be provided for the duration of this MOU. 8. INDEMNITY The Authorised Report Writer will indemnify and keep indemnified the Director, the Victims Compensation Tribunal and the State of New South Wales from and against any loss or liability incurred (including legal costs) arising out of any action, claim, suit or procedure in respect of: (i) any loss of or damage to property of any kind of the Director, the Victims Compensation Tribunal or the State of New South Wales or any other person, or loss or damage of any kind suffered by them, or (ii) personal injury or death of any person, arising out of or by reason of anything done or not done by the Authorised Report Writer, their employees, subcontractors and agents in respect of the Services. 9. INSURANCE 9.1 Professional Indemnity Insurance The Authorised Report Writer must hold or obtain and hold and maintain a policy of indemnity insurance for an amount and a period prescribed in Schedule 1. 9.2 Workers' Compensation The Authorised Report Writer must ensure that an insurance policy is effected prior to commencing performance of the Services and remains current for the duration of this MOU, covering liability for loss, damage, claims, and all direct or associated costs and expenses arising at common law or under workers compensation legislation in respect of persons employed by the Authorised Report Writer. 9.3 Public Liability The Authorised Report Writer must obtain an appropriate policy of public liability insurance prior to commencing the performance of the Services and must maintain that policy for the duration of this MOU. 10. KEEPING OF RECORDS 10.1 Records The Authorised Report Writer must keep proper accounts, records (including information stored by computer and other devices) and time sheets in accordance with accounting principles generally applied in relevant commercial practice in respect of its charges, fees, and/or billing, and any reimbursements payable pursuant to this MOU. 11 TERMINATION 11.1 Termination by the Director other than for Default by the Authorised Report Writer The Director may terminate the MOU at any time, by written notice addressed to the Authorised Report Writer provided that such termination shall not expose the Director to any claim for damages by reason of that termination. 11.2 Termination by the Director for Default by the Authorised Report Writer If the Authorised Report Writer: (a) becomes bankrupt, or insolvent, or enters into a scheme or arrangement with his or her creditors; (b) fails to carry out the Services with due diligence and competence; (c) without reasonable cause, suspends the carrying out of the Services; or (d) otherwise commits a breach of this MOU after being served with a notice from the Director specifying the relevant breach and fails to remedy the breach within the period specified by the Director, the Director may forthwith terminate this MOU by written notice addressed to the Authorised Report Writer. 11.3 Termination by the Authorised Report Writer If the Director: (a) fails to pay the Authorised Report Writer in accordance with this MOU, or (b) commits a substantial breach of this MOU, the Authorised Report Writer may forthwith terminate this MOU by written notice addressed to the Director specifying the default and the Director fails to remedy the default within the time specified in the notice. 11.4 Authorised Report Writer's Continuing Liability Termination by the Director will not release the Authorised Report Writer from liability in respect of any breach of, nor non-performance of any obligation by the Authorised Report Writer pursuant to, this MOU. 11.5 Termination Without Prejudice Termination of this MOU by either party is without prejudice to any accrued rights or remedies of each party. 12. DISCONTINUANCE OF DIRECTOR Subject to any contrary legislative intention: (a) if an authority, institute or association or other body, including but not limited to the Victims Compensation Tribunal, is reconstituted, renamed or replaced or if its powers or functions are transferred to another entity, this MOU is deemed to refer to that new entity; and (b) if an authority, institute or association or other body ceases to exist, including but not limited to the Director or Victims Compensation Tribunal, this MOU is deemed to refer to that entity which serves substantially the same purpose or object as the former entity. 13. PROMOTION AND ADVERTISEMENT The Director may advertise and promote the Authorised Report Writer on Victims Services’ website and other published lists for the purposes of this MOU and the Authorised Report Writer may make no claims or take any action whatsoever against the Director or the Victims Compensation Tribunal as a result of that promotion or advertisement. 14. SUSPENSION OF SERVICES 14.1 The Director may at any time, upon written notice to the Authorised Report Writer, and the period the Director determines in his or her unfettered discretion, suspend the Services or the operation of this MOU. Without limiting the generality of the forgoing, the Director may suspend the Services or this MOU on, but not limited to, the following occurrences: (i) the Authorised Report Writer is investigated or is the subject of an inquiry by any professional or regulatory body; (ii) the Authorised Report Writer is suspected of, fails, or has failed to comply with any code of conduct or ethical code or law relevant to the provision of the Services by the Authorised Report Writer; (iii) the Authorised Report Writer is found, by a relevant Court of competent jurisdiction or relevant professional body or Tribunal validly exercising jurisdiction, of professional misconduct or unsatisfactory professional conduct; (iv) the Director forms the opinion that the Authorised Report Writer has breached a term of this MOU. 14.2 In the event the Director suspends the Services or the MOU in accordance with subclause 14.1, the Authorised Report Writer may make no claim or take any action whatsoever against the Director, the Victims Compensation Tribunal or State of New South Wales for any loss, injury or damage sustained or incurred as a result of the suspension. 14.3 The Authorised Report Writer must, as soon as becoming aware of a matter or thing identified in subclause 14.1 or which may affect the provision of the Services by the Authorised Report Writer, report the matter or thing to the Director. 15. NEGATION OF EMPLOYMENT Nothing in this MOU shall constitute the Authorised Report Writer as an employee or agent of the Director or the Victims Compensation Tribunal nor is the Authorised Report Writer constituted as a member of staff of the Director or Victims Compensation Tribunal or as a public servant for the purposes of the Public Sector Management Act 1988 or any other law. 16. GENERAL 16.1 Waiver Any waiver or forbearance in regard to the performance of this MOU shall not operate and will only apply to the specified instance, and shall not affect the existence and continued applicability of the terms of it thereafter. 16.2 Applicable Law This MOU shall be read and construed according to the laws of the State of New South Wales and the parties submit to the Courts exercising jurisdiction in that State. 16.3 Amendments or Variations This MOU may not be amended or varied except in writing signed by each party. 16.4 Notices The addresses of the parties for the purposes of giving any notice shall be as set out in Schedule 1 or as may from time to time be specified in writing between the parties. 16.5 Charges Any statutory governmental fees, duties or charges (if any) arising out of or incidental to this MOU shall be the responsibility and payable by the Authorised Report Writer. EXECUTED by ) the Director of Victims Services ) for and on behalf of the State of New ) South Wales but not so as to incur ) personal liability in the presence of: ) _________________________ __________________________________ Signature of witness __________________________________ Print name and address of witness EXECUTED by ) ) ) in the presence of: ) _________________________ __________________________________ Signature of witness __________________________________ Print name and address of witness SCHEDULE 1 PROFESSIONAL INDEMNITY INSURANCE Item 1 Currency of professional indemnity insurance 12 months from completion of the Services: Item 2 Quantum of professional indemnity insurance: $2,000,000.00 Item 3 Notices to: Director Address: Victims Services Locked Bag A5010 SYDNEY SOUTH NSW 1235 Authorised Report Writer Contact name: Address: Tel: Fax: Mobile: SCHEDULE 2 THE SERVICES The aim of the Services to be provided by the Authorised Report Writer will be an objective and balanced assessment of a Victim's (applicant’s) condition. The Authorised Report Writer will not be permitted to provide an assessment of and counselling to the same Victim. However, the Authorised Report Writer may provide counselling to any other victim or applicant who they have not assessed in respect of any previous claim or Report. Assessment and Report The purpose of the Services is to provide a Report that will assist a compensation assessor of the Victims Compensation Tribunal to determine whether there is a compensable injury of psychological or psychiatric disorder as defined by the Victims Compensation Act 1996 as amended. It is a requirement that the Authorised Report Writer see the Victim (applicant) in person when providing a written assessment and document the processes which have occurred in the preparation of the assessment including any diagnostic procedures which have been used by the Authorised Report Writer. The Report must detail the assessment and report upon the findings of the assessment in relation to the psychological and/or psychiatric condition or disorder of the applicant with reference to the act of violence and any resulting level of disability. A Report is unsatisfactory if it only lists the Victim’s (applicant’s) psychological symptoms. The Report must present evidence of the nature and extent of any disabilities with concrete, specific examples of how the disability has affected the applicant’s day to day functioning. The Report should refer to the Victim’s (applicant’s) premorbid function and the relative contribution of the act of violence to the disorder and level of disability. The Authorised Report Writer must make themselves available for an appointment within two months of the Tribunal's approval of the Victim's nomination and should forward a written report complying with the above criteria within ten working days of last meeting with the Victim (applicant). Director, Victims Services Locked Bag A5010 SYDNEY SOUTH NSW 1235 SCHEDULE 3 THE FEE 1. REPORTS The Authorised Report Writer will be paid a fee of $500.00 for each Report upon delivery and disclosure of the Report to the Director or Victims Compensation Tribunal provided such Report satisfies and complies with the criteria specified in Schedule 2. |
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