Department of Industry Funding Agreement Commonwealth of Australia (Commonwealth) [insert] (Recipient) page 1
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Department of Industry
Funding Agreement
Commonwealth of Australia (Commonwealth)
[insert] (Recipient)
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Details
Date _________________/_________________/___20________________Day month year
PartiesName The Commonwealth of Australia as represented by the Department of IndustryShort form name Commonwealth
ABN 74 599 608 295
Name [insert name of Recipient]Short form name Recipient
ABN [insert Recipient’s ABN]
BackgroundA On 12 September 2002, the then Prime Minister announced that as part of the Government’s
strategy to encourage the use of biofuels in transport, the Government would provide grants to ethanol producers for a 12 month period commencing 18 September 2002. These short-term production grants were introduced to provide a targeted means of maintaining the use of biofuels in transport in Australia, while longer term arrangements were considered by the then Government regarding the future of the emerging renewable energy industry.
B In the 2003-04 Federal Budget, the Government announced that the production grants would be extended until 30 June 2008. On 25 March 2004, the Government decided to extend the Ethanol Production Grant Program (Program) for a further 3 years until 30 June 2011. In the 2011-12 Federal Budget, the Government announced that the Program would be extended until 30 November 2011.
C In the 2014-15 Budget the Government announced that the production grants would cease on 30 June 2015.
D This Agreement between the Commonwealth of Australia (represented by the Department of Industry) and the Recipient sets out the rights and obligations of both parties in relation to the grants.
E The parties believe, but neither warrants, that by application of GSTR 2012/2, no GST is payable in connection with this Agreement. Clause 7 will apply if GST is payable.
F The Commonwealth is required by law to ensure accountability for the Funds and accordingly the Recipient is required to be accountable for all Funds received.
G The Commonwealth has agreed to provide the Funds to the Recipient, subject to the terms and conditions of this Agreement.
H The Recipient accepts the Funds subject to the terms and conditions of this Agreement.
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Funding Agreement~*~Details 2
Agreed terms 5
Part 1 – Project and Funds 51. Definitions and interpretation 52. Priority of documents 93. Duration of Agreement 94. Warranties 95. Contributions 106. Funds 107. GST 128. Repayment 139. Acquittal of Funding 1310. Monitoring progress 14
Part 2 – General requirements 1511. Intellectual Property Rights 1512. Moral Rights 1613. Indemnity 1714. Insurance 1715. Publicity 1816. Acknowledgement of support 1817. Confidentiality 1818. Work health and safety 2019. Protection of personal information 2020. Conflict of interest 2221. Books and records 2222. Audit and access 2223. Dispute resolution 2424. Termination 2525. Survival 2726. Notices and other communications 2727. Miscellaneous 28
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Schedule 1 – Agreement Details 31Schedule 2 – Reporting 33Schedule 3 Signing page 36
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Agreed terms
Part 1 – Program and Funds
1. Definitions and interpretation1.1 Defined terms
In this Agreement, except where the contrary intention is expressed, the following definitions are used:
Accounting Standards 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 (Cth)) or other accounting standards which are generally accepted and consistently applied in Australia.
Advisers (a) the financial or legal advisers of a party; and
(b) the respective officers and employees of those financial or legal advisers.
Agreed Terms clauses 1 to 27 of this Agreement, which set out terms and conditions agreed by the parties.
Agreement this agreement between the Commonwealth and the Recipient, as varied from time to time in accordance with clause 27.4, and includes its schedules and any attachments.
Agreement Material any Material created on or following the Commencement Date, for the purpose of or as a result of performing its obligations under this Agreement and includes any modifications that may be required under clause 11.5(b).
Agreement Period the period from the Commencement Date to the End Date.
Business Day a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the act is to be performed or where the Notice is received.
Commencement Date the date on which this Agreement commences, as specified in item 6 of Schedule 1.
Commonwealth the Commonwealth as specified in item 1 of Schedule 1.
Commonwealth Material any Material provided to the Recipient by the Commonwealth, including the Material (if any) specified in item 13 of Schedule 1.
Commonwealth Representative
the person identified in item 3 of Schedule 1.
Confidential Agreement Provisions
any provisions of this Agreement identified as confidential in item 19 of Schedule 1.
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Confidential Information information that is confidential at common law or in equity, and includes:
(a) information that is contained in completed Australian Taxation Office Excise Return forms; or
(b) information that has been designated as confidential by the Recipient,
but does not include information that is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation.
Corporations Act the Corporations Act 2001 (Cth).
Department the Department of Industry.
Duty an amount paid or payable (as indicated where used) pursuant to the Excise Act 1901 or the Excise Tariff Act 1921
Eligible Ethanol ethanol that:
(a) is produced by the applicant in Australia from locally derived feedstocks being either:
(i) biomass feedstock (including biomass waste and residues)
(ii) Urban Waste; and
(b) is classified to sub-items 10.7, 10.11, 10.20 or 10.30 of the schedule to the Excise Tariff Act 1921; and
(c) has been entered for home consumption under section 58 or section 61C of the Excise Act 1901; and
(d) for which the Excise duty payable has been paid; and
(e) does not include any ethanol that has been imported into Australia and then converted to fuel ethanol.
End Date the date on which this Agreement will end (unless terminated earlier), as specified in item 7 of Schedule 1.
Funds the amounts payable by the Commonwealth under this Agreement as specified in clause 6.1 and any interest earned on those amounts.
Intellectual Property Rights
all intellectual property rights, including:
(a) copyright, patents, trademarks (including goodwill in those marks), designs, trade secrets, know how, rights in circuit layouts, domain names and any right to have confidential information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere,
whether or not such rights are registered or capable of being
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registered.
Law any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth, or a local government, and includes the common law and rules of equity as applicable from time to time.
LEADR the dispute resolution association with that name and the Australian Business Number 69 008 651 232.
Material includes property, information, software, firmware, documented methodology or process, documentation or other material in whatever form, including any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any category of Intellectual Property Rights.
Moral Rights the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work, and the right not to have authorship of a work falsely attributed, as defined in the Copyright Act 1968 (Cth).
Notice a notice, demand, consent, approval or communication issued under this Agreement.
Other Financial Assistance
has the meaning given in paragraph 5.1(a).
Personnel in relation to a party, any employee, officer, agent, or professional adviser of that party, and in the case of the Recipient, of any subcontractor.
Pre-existing Material Material owned by a party before execution of this Agreement, including any Material specified in item 14 of Schedule 1.
Producer the meaning given in the Program Administrative Guidelines.
Program the Program referred to in item 5 of Schedule 1.
Program Administrative Guidelines
the Program Administrative Guidelines for the Ethanol Production Grants Program issued by the Department, as amended from time to time.
Program Funding the funding made available by the Parliament of the Commonwealth of Australia for the Program, being the funding specified in the Portfolio Budget Statement for the relevant Financial Year, as varied by any Portfolio Additional Estimates Statement and as increased or reduced during the relevant Financial Year by Parliament or the Minister of the Department.
Recipient the party specified in item 2 of Schedule 1.
Recipient Representative the person identified in item 4 of Schedule 1.
Reports the reports to be provided under clause 10.2.
Schedules the schedules to this Agreement.
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Third Party the meaning given in the Program Administrative Guidelines.
Third Party Material Material owned by a third party that is:
(a) included, embodied in or attached to the Agreement Material; or
(b) used in undertaking the Program.
Urban Waste any homogenous or heterogeneous material; discarded, rejected, abandoned, unwanted or surplus matter (in solid, liquid or gaseous forms) from any process from which the matter was produced and the purpose it was produced for; or anything declared by regulation or by an environment protection policy to be a waste, whether of value or not. Specifically excluded are the following: any waste categorised as “prescribed” or “scheduled” by an environmental protection policy of Commonwealth or State and Territory governments; any waste generated outside of Australia; any waste derived from the manufacture, production, refinement or extraction of fossil fuels; and any source separated solid waste intended for sale or for recycling, reprocessing, recovery or purification by a separate operation.
WHS Act the Work Health and Safety Act 2011 (Cth) and any corresponding WHS law as defined in that Act.
WHS Laws the WHS Act, regulations made under the WHS Act and any Code of Practice approved for the purpose of the WHS Act.
WHS Worker Personnel of the Recipient who are workers (as defined in the WHS Act):
(a) engaged, or caused to be engaged by the Commonwealth; or
(b) whose activities in carrying out work are influenced or directed by the Commonwealth,
while at work (wherever occurring) in the Commonwealth’s business or undertaking.
1.2 InterpretationIn this Agreement, except where the contrary intention is expressed:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a clause, paragraph or schedule is to a clause or paragraph of, or schedule to, this Agreement;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to A$, $A, dollar or $ is to Australian currency;
(f) a reference to time is to Canberra, Australia time;
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(g) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assignees and substitutes;
(h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(i) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(j) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(k) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
(l) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
(m) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it;
(n) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
(o) headings are for ease of reference only and do not affect interpretation.
1.3 Completion of SchedulesTo the extent that the parties have not completed items in a Schedule, unless otherwise stated in the Schedule, those items will be taken to be 'not applicable' for the purpose of this Agreement.
2. Priority of documentsIf there is inconsistency between any of the documents forming part of this Agreement, those documents will be interpreted in the following order of priority to the extent of any inconsistency:
(a) Agreed Terms;
(b) Schedules;
(c) any attachments to the Schedules; and
(d) documents incorporated by reference in this Agreement.
3. Duration of AgreementThis Agreement begins on the Commencement Date and continues until the End Date unless terminated in accordance with clause 24.
4. Warranties4.1 Warranties
The Recipient represents and warrants that:
(a) it has the right to enter into this Agreement;
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(b) if the Recipient is a trustee, it enters this Agreement personally and in its capacity as trustee and has the power to perform its obligations under this Agreement.
(c) it is compliant with the Workplace Gender Equality Act 2012 (Cth) (WGE Act) and that:
(i) if it becomes non-compliant with the WGE Act during the Agreement Period, the Recipient must notify the Commonwealth as soon as practicable;
(ii) if the Agreement Period exceeds 18 months, the Recipient must provide a current letter of compliance under the WGE Act within 18 months from the Commencement Date and following this, annually to the Commonwealth;
(iii) compliance with the WGE Act does not relieve the Recipient from its responsibility to comply with its other obligations under this Agreement.
(d) all ethanol in respect of which the Recipient makes a Claim is Eligible Ethanol;
(e) no ethanol in respect of which the Recipient makes a Claim has been imported;
(f) the Recipient is the Producer of all ethanol in respect of which the Recipient makes a Claim.
5. Contributions5.1 Other government funding
(a) The Recipient must give the Commonwealth full details of any financial assistance for activities in connection with the Program which the Recipient receives from another Commonwealth, State or Territory government source or agency after the Commencement Date of this Agreement, (Other Financial Assistance) including the amount and source of the funding and the name of the program under which it was provided, within 30 days of the Recipient receiving notice that the Other Financial Assistance has been approved.
(b) The Commonwealth may reduce, suspend or defer its payments in the event the Recipient receives Other Financial Assistance, but only to the extent of the value of that Other Financial Assistance
6. Funds6.1 Funding
(a) For each Claim during the term of this Agreement, an amount will be paid, calculated in accordance with the formula ‘rate x volume’, where:
(i) ‘rate’ means the rate of excise duty applicable to Eligible Ethanol under the Excise Tariff Act 1921 during the period of the Claim.
(ii) ‘volume’ means the volume in litres of Eligible Ethanol during the period of the Claim.
6.2 PaymentSubject to:
(a) clauses 6.3, 6.4, and 6.5;
(b) sufficient funding being available for the Program
(c) the Recipient complying with this Agreement; and
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(d) the Commonwealth determining that the ethanol in respect of which a Claim is made is Eligible Ethanol,
the Commonwealth will pay the Funds to the Recipient.
6.3 Suspension(a) Without limiting any other right or remedy of the Commonwealth, the Commonwealth may
suspend payment of the Funds (or any part of the Funds) if:
(i) the Recipient has not provided a Report due to be provided before the date for payment, until the Report is provided;
(ii) a Report provided by the Recipient is not accurate or complete, until an accurate and complete replacement Report is provided; or
(iii) the Commonwealth has become entitled to terminate this Agreement under clause 24.2.
(b) The Commonwealth may withhold any payment if it is not satisfied that the Recipient is entitled to payment, for such time as the Commonwealth reasonably requires to make further inquiries to determine the Recipient’s entitlement to payment.
(c) The Commonwealth may defer any payment otherwise due in a Financial Year to any other Financial Year if, in the Commonwealth’s reasonable opinion, available Program Funding may be insufficient to meet that commitment in the first-mentioned Financial Year.
(d) The Commonwealth may reduce the Funds after taking into account Other Financial Assistance received by the Recipient from another Commonwealth, State or Territory government source in respect of Eligible Ethanol which is the subject of a Claim.
(e) Despite any suspension, the Recipient must continue to perform its obligations not affected by the suspension under this Agreement.
6.4 Claims and payment process(a) The Recipient must not make a Claim in respect of ethanol which is not Eligible Ethanol,
including ethanol that is not Eligible Ethanol because it has been imported.
(b) When making a Claim, the Recipient must:
(i) submit to the Chief Executive Officer an application signed by or on behalf of the Recipient containing the matters and in the form required by the Commonwealth from time to time, which as at the date of this Agreement is set out in Attachment 1;
(ii) either submit to the Chief Executive Officer, or procure another party to submit to the Chief Executive Officer evidence satisfactory to the Chief Executive Officer that the ethanol in respect of which the Recipient is making the Claim is Eligible Ethanol, including:
(A) a copy of the Australian Taxation Office Excise Return form in respect of the ethanol the subject of the Claim, or other evidence satisfactory to the Chief Executive Officer, that the ethanol in respect of which the Recipient is making the Claim has been entered for home consumption under section 58 or section 61C of the Excise Act 1901;
(B) a bank receipt or statement or other evidence satisfactory to the Chief Executive Officer that the Duty payable on the ethanol in respect of which the Recipient is making the Claim has been paid.
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(c) Subject to Commonwealth approval, the Recipient may direct the Commonwealth in writing to pay any or all payments of Funds to a person nominated by the Recipient.
(d) If the Recipient nominates a person in accordance with clause 6.4(c), the Commonwealth may make the relevant payment or payments to that Third Party, which payment or payments will be in full satisfaction of its obligation to the Recipient under this clause 6 in relation to that payment or payments.
(e) For the avoidance of doubt, all references in this Agreement to a payment to the Recipient include a payment to a Third Party to whom the Recipient has directed the Commonwealth to pay a payment of Funds under clause 6.4(c).
6.5 Due date for paymentSubject to clause 6.3, the Commonwealth must make payment of a correctly rendered Claim within 30 days after receiving the Claim and will make reasonable efforts to pay these Claims within 14 days.
6.6 Commonwealth rights(a) The Commonwealth’s determination as to whether ethanol in respect of which a Claim is
made is Eligible Ethanol is final and binding on the Recipient.
(b) The Commonwealth’s determination as to whether the Recipient (by payment either to the Recipient personally or to a Third Party nominated by the Recipient) has received Funds in excess of its entitlement is final and binding.
6.7 Incorrect invoices, under/over paymentIf an invoice is found to have been rendered incorrectly after payment, any underpayment or overpayment will be recoverable by or from the Recipient, as the case may be.
6.8 TaxesThe Recipient must pay all:
(a) stamp duty (including penalties and interest) assessed or payable in respect of this Agreement and the Program; and
(b) Subject to clause 7, all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this Agreement.
7. GST 7.1 Construction
In this clause 7 words and expressions which are not defined in this Agreement but which have a defined meaning in the GST Law have the same meaning as in the GST Law.
7.2 Consideration GST exclusiveUnless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST.
7.3 Payment of GSTIf GST is payable by a supplier on any supply made under this Agreement, the recipient of the supply will pay to the supplier an amount equal to the GST payable on the supply, in addition to and at the same time that the consideration for the supply is to be provided under this Agreement.
8. Repayment8.1 Entitlement to refund
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(a) Where the Recipient or a Third Party becomes entitled to a refund of any duty paid by it on ethanol in respect of which the Recipient has made a Claim or received payment under this Agreement, the Recipient must notify the Commonwealth of that entitlement immediately after the Recipient becomes aware of the entitlement.
(b) The Recipient must ensure that it has arrangements in place with any Third Party which has paid duty on ethanol in respect of which the Recipient has made a Claim under this Agreement, to require that the Third Party must notify the Recipient immediately if the Third Party becomes aware that it has become entitled to any refund of that duty.
8.2 Repayment notice(a) The Commonwealth may give the Recipient a notice requiring the Recipient to repay to the
Commonwealth (or deal with as specified by the Commonwealth) an amount which the Commonwealth is entitled to recover under clause 8.1.
(b) If the Commonwealth gives a notice under clause 8.2(a), the Recipient must repay the amount specified in the notice in full (or deal with it as specified by the Commonwealth) within 30 days of the date of the notice.
9. Acquittal of Funding9.1 Refund of Duty
(a) If at any time, for any reason, the Recipient or a Third Party receives a refund of any duty paid by it on Eligible Ethanol in respect of which the Commonwealth has paid an amount under clause 6, the Recipient must repay or reimburse to the Commonwealth in full without deduction the amount which has been refunded.
(b) If the Recipient does not repay or reimburse the amount of a refund in accordance with clause 9.1(a) within 30 days after either receiving the refund or being notified that the refund has been received, the Recipient must pay, in addition to the amount of the refund, interest calculated under clause 9.3.
9.2 Repayment of overpayment(a) If at any time, for any reason other than the circumstances set out in clause 9.1(a), the
Commonwealth has paid the Recipient an amount greater than the amount to which the Recipient is entitled under this Agreement, the Commonwealth may by notice in writing to the Recipient require the Recipient to repay or reimburse to the Commonwealth the amount of the excess.
(b) If the Commonwealth gives the Recipient a notice under clause 9.2(a), the Recipient must repay or reimburse to the Commonwealth the amount notified in full without deduction within 14 days of the date of the notice.
(c) The Commonwealth in its absolute discretion may require the Recipient to pay interest, in addition to the amount of the excess, calculated in accordance with clause 9.3.
9.3 InterestIf interest is required to be paid in addition to the amount of the excess or in addition to repayments required under clause 9.1(a) or 9.2(a), it will be calculated:
(a) at the 90 day bills rate specified in the Australian Financial Review for the relevant day on which:
(i) the 30 day period referred to in clause 9.1(b) ends;
(ii) the Commonwealth issues the notice referred to in clause 9.2(a) or 9.4(a);
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(b) on a daily basis upon the amount that is required to be repaid or reimbursed;
(c) from and including:
(i) the relevant day on which the 30 day period referred to in clause 9.1(b) ends; or
(ii) the date of the notice referred to in clause 9.2(a) or 9.4(a).
up to but excluding the day on which the Recipient repays or reimburses the amount in full without deduction; and
(d) on the actual number of days elapsed on the basis of a 365 day year.
9.4 Recovery upon termination(a) If the Commonwealth terminates this Agreement under clause 24.2, the Commonwealth
may by notice in writing to the Recipient require the Recipient to repay some or all of the Funds paid to the Recipient under this Agreement.
(b) The Commonwealth may at its absolute discretion require the Recipient to pay interest on any amount to be repaid under clause 9.4(a) , calculated in accordance with clause 9.3.
(c) If the Commonwealth gives the Recipient a notice under clauses 9.4(a) , the Recipient must repay or reimburse to the Commonwealth the amount notified in full without deduction within 30 days of the date of the notice.
9.5 Commonwealth rights(a) The Commonwealth may set-off any money due for payment by the Commonwealth to the
Recipient under this Agreement against any money due for payment by the Recipient to the Commonwealth under this Agreement.
(b) If the Recipient is required to pay an amount to the Commonwealth under this Agreement, the Commonwealth may recover the amount as a debt due and payable to the Commonwealth.
10. Monitoring progress10.1 Progress meetings
The parties will meet at the times and in the manner reasonably required by the Commonwealth to discuss any issues in relation to this Agreement or the Program. The Recipient must ensure that the Recipient Representative, and the Commonwealth must ensure the Commonwealth Representative, is reasonably available to attend such meetings and answer any queries relating to the Program raised by either party.
10.2 ReportingThe Recipient must provide the Commonwealth with reports in accordance with Schedule 2.
10.3 EvaluationIn relation to any review or final evaluation of the Program, the Recipient must within 14 days:
(a) provide all reasonable assistance to the Commonwealth;
(b) respond to all reasonable requests from the Commonwealth; and
(c) provide any information reasonably required by the Commonwealth.
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Part 2 – General requirements
11. Intellectual Property Rights11.1 Pre-existing Material and Third Party Material
This clause 11 does not affect the ownership of the Intellectual Property Rights in any Pre-existing Material or Third Party Material.
11.2 Third Party Material(a) The Recipient must obtain all necessary copyright and other Intellectual Property Rights
permissions before making any Third Party Material available for the purpose of this Agreement or the Program.
(b) The Recipient must specify which parts (if any) of the Intellectual Property Rights are Third Party Material and who owns the Intellectual Property Rights in that Material.
11.3 Intellectual Property Rights in Agreement Material(a) All Intellectual Property Rights in the Agreement Material vest in the Recipient on
creation.
(b) Unless otherwise specified in item 15 of Schedule 1, to the extent that:
(i) the Commonwealth needs to use any of the:
(A) Pre-existing Material or Third Party Material provided by the Recipient; or
(B) Agreement Material,
in connection with the Program the Recipient grants to, or must obtain for, the Commonwealth for the period specified in item 15 a world-wide, royalty free, non-exclusive licence (including the right to sublicense) to use, reproduce, adapt, modify and communicate that Material; or
(ii) the Recipient needs to use any of the Commonwealth Material for the purpose of performing its obligations under this Agreement, the Commonwealth grants to the Recipient, subject to any conditions or restrictions specified in item 13 of Schedule 1 and any direction by the Commonwealth, a world-wide, royalty-free, non-exclusive, non-transferable licence (including the right to sublicense) to use, reproduce, adapt, modify and communicate such Commonwealth Material solely for the purpose of undertaking the Program.
(c) The licence granted to the Commonwealth under clause 11.3(b)(i) does not include a right to exploit the Pre-existing Material, Third Party Material or Agreement Material for the Commonwealth's commercial purposes.
11.4 WarrantyThe Recipient warrants that:
(a) the Pre-existing Material, Third Party Material and Agreement Material (Warranted Materials) and the Commonwealth's use of the Warranted Materials will not infringe the Intellectual Property Rights of any person; and
(b) it has the necessary rights to vest the Intellectual Property Rights and grant the licences as provided for in this clause 11; and
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(c) where specified at item 16 of the Agreement Details at Schedule 1, the Warranted Materials are compliant with the Web Content Accessibility Guidelines (WCAG) 2.0 to a double A rating.
11.5 Remedy for breach of warrantyIf someone claims, or the Commonwealth reasonably believes that someone is likely to claim, that all or part of the Warranted Materials infringe their Intellectual Property Rights, the Recipient must, in addition to the indemnity under clause 13 and to any other rights that the Commonwealth may have against it, promptly, at the Recipient's expense:
(a) use its best efforts to secure the rights for the Commonwealth to continue to use the affected Warranted Materials free of any claim or liability for infringement; or
(b) replace or modify the affected Warranted Materials so that the Warranted Materials or the use of them does not infringe the Intellectual Property Rights of any other person without any degradation of the performance or quality of the affected Warranted Materials.
12. Moral Rights12.1 Obtaining consents
To the extent permitted by applicable Laws and for the benefit of the Commonwealth, the Recipient must:
(a) give, where the Recipient is an individual, in a form acceptable to the Commonwealth;
(b) use its best endeavours to ensure that each of the Personnel used by the Recipient in the production or creation of the Agreement Material gives, in a form acceptable to the Commonwealth; and
(c) use its best endeavours to ensure that any holder of Moral Rights in Third Party Material included in the Agreement Material gives,
genuine consent in writing to the use of the Agreement Material for the Specified Acts, even if such use would otherwise be an infringement of its or their Moral Rights and notify the Commonwealth if this consent is not obtained.
12.2 Specified Acts(a) In this clause 12, unless otherwise specified in item 17 of Schedule 1, Specified Acts
means:
(i) falsely attributing the authorship of any Agreement Material, or any content in the Agreement Material (including literary, dramatic, artistic works and cinematograph films within the meaning of the Copyright Act 1968 (Cth));
(ii) materially altering the style, format, colours, content or layout of the Agreement Material and dealing in any way with the altered Agreement Material;
(iii) reproducing, communicating, adapting, publishing or exhibiting any Agreement Material; and
(iv) adding any additional content or information to the Agreement Material.
(b) For the purposes of clause 12.2(a), Agreement Material includes any Pre-existing Material and Third Party Material to the extent that it is included in, forms part of or is attached to the Agreement Material.
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13. Indemnity(a) The Recipient will at all times indemnify, hold harmless and defend the Commonwealth,
its officers and employees (referred to in this clause 13 as "those indemnified") from and against any loss or liability, including:
(i) loss of, or damage to, property of the Commonwealth;
(ii) claims by any person in respect of personal injury or death;
(iii) claims by any person in respect of loss of, or damage to, any property; and
(iv) costs and expenses including the costs of defending or settling any claim referred to in clause 13(a)(ii) or clause 13(a)(iii),
arising out of or as a consequence of:
(v) an infringement, or an alleged infringement, of the Intellectual Property Rights of any person, which occurred by reason of an act done by the Commonwealth in relation to any part of the Program;
(vi) any actual, likely or threatened breach of the Recipient’s, its Personnel's or subcontractor’s obligations relating to Confidential Information or personal information; or
(vii) without limiting the preceding paragraphs, any breach of this Agreement by the Recipient, or negligence on the part of the Recipient, its Personnel or subcontractors or wrongful or unlawful act or omission on the part of the Recipient, its Personnel or subcontractors.
(b) The Recipient’s liability to indemnify those indemnified under clause 13(a) will be reduced proportionally to the extent that any negligent act or omission of those indemnified contributed to the loss.
(c) The Recipient will at all times indemnify, hold harmless and defend the Commonwealth against any compensation, remuneration or other amount payable to a third party for the use or exploitation of the Agreement Material (or any of it), or exercise of any Intellectual Property Right of a third party embodied in the Agreement Material, by the Commonwealth (or any person authorised by the Commonwealth) in circumstances where that use, exploitation or exercise is permitted under legislation without infringing the third party’s Intellectual Property Right, and against all loss, liability, cost and expense arising out of or in connection with a claim for payment of any such compensation, remuneration or other amount.
14. Insurance14.1 Obligation to maintain insurance
Unless otherwise specified in item 18 of Schedule 11, in connection with the Program, the Recipient must have and maintain:
(a) Workers’ compensation insurance for an amount required by the relevant State or Territory legislation.
(b) Public liability insurance for $10,000,000 (ten million dollars) or more per claim.
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14.2 Certificates of currencyThe Recipient must, on request by the Commonwealth, provide current relevant confirmation of insurance documentation from its insurers or insurance brokers certifying that it has insurance as required by clause 14.1.
15. Publicity(a) The Commonwealth reserves the right to publicise and report on the awarding of the
Funds, and may do this by, amongst other means, including the Recipient's name, the amount of the Funds and the title and a brief description of the Program in media releases, general announcements about the Program and annual reports.
(b) The Recipient must, before making a public announcement in connection with this Agreement or any transaction contemplated by it, obtain the Commonwealth's written agreement to the announcement, except if required by Law or a regulatory body (including a relevant stock exchange).
(c) If the Recipient is required by Law or a regulatory body to make a public announcement in connection with this Agreement or any transaction contemplated by this Agreement, the Recipient must, to the extent practicable, first consult with and take into account the reasonable requirements of the Commonwealth.
16. Acknowledgement of supportThe Recipient must, in all:
(a) publications, promotional and advertising materials in relation to the Program;
(b) public announcements, events and activities in relation to the Program; and
(c) any products, processes or inventions developed as a result of it;
acknowledge the financial and other support received from the Commonwealth, in the manner (if any) specified in item 10 of Schedule 1 or otherwise approved by the Commonwealth prior to its use.
17. Confidentiality 17.1 Prohibition on disclosure
(a) Subject to clause 17.4, the Recipient must not, without the prior written consent of the Commonwealth, disclose any Commonwealth Confidential Information to a third party.
(b) Subject to clause 17.4, the Commonwealth must not, without the prior written consent of the Recipient, disclose any Recipient Confidential Information to a third party.
17.2 Conditions of approvalIn giving written consent to use or disclose Commonwealth Confidential Information, the Commonwealth may impose such conditions as it thinks fit. The Recipient must comply with any term or condition imposed by the Commonwealth under this clause 17.2.
17.3 Advisers and third partiesThe Commonwealth may at any time require the Recipient to arrange for:
(a) its Advisers;
(b) its Personnel and other employees and subcontractors involved in the Program; or
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(c) any other third party, to whom Commonwealth Confidential Information may be disclosed pursuant to clause 17.4(a) or clause 17.4(b),
to give a written undertaking relating to the use and non-disclosure of the Commonwealth's Confidential Information in the form approved by the Commonwealth.
17.4 Exceptions to obligationsThe obligations on each party under clause 17.1 or 17.10 will not be taken to have been breached to the extent that Confidential Information of the other party:
(a) is disclosed by a party to its Advisers or employees solely in order to comply with obligations, or to exercise rights, under this Agreement;
(b) is disclosed to a party's internal management personnel, solely to enable effective management or auditing of activities related to this Agreement;
(c) is disclosed by the Commonwealth to the responsible Minister;
(d) is disclosed by the Commonwealth, in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia;
(e) is shared by the Commonwealth within the Department, or with another Commonwealth agency, where this serves the Commonwealth's legitimate interests;
(f) is disclosed by the Commonwealth to the Auditor-General, the Commonwealth Ombudsman or the Australian Information Commissioner;
(g) is required by Law to be disclosed; or
(h) is in the public domain otherwise than due to a breach of this Agreement.
17.5 Obligation on disclosureWhere a party discloses Confidential Information of the other party to another person:
(a) pursuant to clauses 17.4(a), (b) or (e), the disclosing party must:
(i) notify the receiving person that the information is Confidential Information; and
(ii) not provide the information unless the receiving person agrees to keep the information confidential, including in the case of Commonwealth’ Confidential Information, the receiving person giving the Commonwealth a legally binding undertaking to that effect in the form approved by the Commonwealth; or
(b) pursuant to clauses 17.4(c) and (d), the disclosing party must notify the receiving party that the information is Confidential Information of the other party.
17.6 Additional confidential information(a) The parties may agree in writing after the date of this Agreement that certain additional
information is to constitute Confidential Information for the purposes of this Agreement.
(b) Where the parties agree in writing after the date of this Agreement that certain additional information is to constitute Confidential Information for the purposes of this Agreement, this documentation is incorporated into, and becomes part of this Agreement, on the date by which both parties have signed this documentation.
17.7 Period of confidentialityThe obligations under this clause 17 continue, notwithstanding the expiry or termination of this Agreement:
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(a) in relation to an item of information described in item 19 of Schedule 1, for the period set out in that Schedule in respect of that item; and
(b) in relation to any information which the parties agree in writing after the date of this Agreement is to constitute Confidential Information for the purposes of this Agreement, for the period agreed by the parties in writing in respect of that information.
17.8 No reduction in privacy obligationsNothing in this Agreement derogates from any obligation which either party may have under the Privacy Act 1988 (Cth) as amended from time to time, in relation to the protection of personal information as defined in that Act or information that is protected by the Census and Statistics Act 1905 (Cth), or any other Act, regulation or other legislative instrument requiring secrecy or confidentiality in dealing with information.
17.9 Return of informationAt the Commonwealth's request or on the expiry or termination this Agreement, the Recipient must promptly return all of the Commonwealth's physical and written records containing Commonwealth’ Confidential Information, and all documentation relating to that Commonwealth’ Confidential Information (including copies), to the Commonwealth in a form reasonably requested by the Commonwealth. Alternatively, if requested by the Commonwealth, the Recipient must destroy such items in the manner specified by the Commonwealth and promptly certify to the Commonwealth in writing that it has done so.
17.10 Confidential Agreement ProvisionsNotwithstanding any other provision of this Agreement, the Commonwealth may disclose the provisions of this Agreement except the Confidential Agreement Provisions.
18. Work health and safety18.1 General safety obligations
(a) The Recipient must ensure production is undertaken in a safe manner.
(b) The Recipient must not, and must ensure its Personnel do not, by act or omission place the Commonwealth in breach of its obligations under the WHS Laws.
(c) The Recipient must, and must ensure its Personnel, if using or accessing the Commonwealth’s premises or facilities, comply with all reasonable instructions, directions, policies and procedures relating to work health and safety in operation at those premises or facilities whether specifically drawn to the attention of the Recipient or might reasonably be inferred from the circumstances.
19. Protection of personal information19.1 Application of this clause
This clause 19 applies only where the Recipient deals with personal information when, and for the purpose of, accessing the Program under this Agreement.
19.2 ObligationsThe Recipient agrees to be treated as a ‘contracted service provider’ within the meaning of section 6 of the Privacy Act 1988 (Cth) (the Privacy Act), and agrees, in accessing the Program under this Agreement:
(a) to use or disclose personal information obtained during the course of accessing the Program under this Agreement, only for the purposes of this Agreement;
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(b) not to do any act or engage in any practice that would breach an APP contained in the Privacy Act, which if done or engaged in by an agency, would be a breach of that APP;
(c) to carry out and discharge the obligations contained in the APPs as if it were an agency under the Privacy Act;
(d) to notify individuals whose personal information the Recipient holds, that complaints about acts or practices of the Recipient may be investigated by the Australian Information Commissioner who has power to award compensation against the Recipient in appropriate circumstances;
(e) not to use or disclose personal information or engage in an act or practice that would breach section 16F of the Privacy Act (direct marketing), an APP or an APP privacy policy, where that section, APP or APP privacy policy is applicable to the Recipient, unless:
(i) in the case of section 16F – the use or disclosure is necessary, directly or indirectly, to discharge an obligation of this Agreement; or
(ii) in the case of an APP or an APP privacy policy – where the activity or practice is engaged in for the purpose of discharging, directly or indirectly, an obligation under this Agreement, and the activity or practice which is authorised by this Agreement is inconsistent with the APP or APP privacy policy;
(f) to disclose in writing to any person who asks, the content of the provisions of this Agreement (if any) that are inconsistent with an APP or an APP privacy policy binding a party to this Agreement;
(g) to immediately notify the Commonwealth if the Recipient becomes aware of a breach or possible breach of any of the obligations contained in, or referred to in, this clause 19, whether by the Recipient or any subcontractor;
(h) to comply with any directions, guidelines, determinations or recommendations of the Australian Information Commissioner, to the extent that they are not inconsistent with the requirements of this clause 19; and
(i) to ensure that any employee of the Recipient who is required to deal with personal information for the purposes of this Agreement is made aware of the obligations of the Recipient set out in this clause 19.
19.3 SubcontractsThe Recipient must ensure that any subcontract entered into for the purpose of fulfilling its obligations under this Agreement contains provisions to ensure that the subcontractor has the same awareness and obligations as the Recipient has under this clause 19, including the requirement in relation to subcontracts.
19.4 IndemnityThe Recipient agrees to indemnify the Commonwealth in respect of any loss or liability suffered or incurred by the Commonwealth which arises directly or indirectly from a breach of any of the obligations of the Recipient under this clause 19, or a subcontractor under the subcontract provisions referred to in clause 19.3.
19.5 DefinitionsIn this clause 19, the terms agency’, ‘APP privacy policy and ‘Australian Privacy Principles’ (APPs) have the same meaning as they have in section 6 of the Privacy Act, and ‘personal information’, which also has the meaning it has in section 6 of the Privacy Act, means:
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(a) ‘information or an opinion about an identifiable individual, or an individual who is reasonably identifiable, whether the information or an opinion is true or not; and whether the information or opinion is recorded in a material form or not.’
20. Conflict of interest20.1 Warranty
The Recipient warrants that, to the best of its knowledge after making diligent inquiry, at the date of signing this Agreement, no conflict of interest exists or is likely to arise in the performance of its obligations under this Agreement.
20.2 Notification of a conflict of interestIf, while subject to this Agreement a conflict of interest arises, or appears likely to arise, the Recipient must:
(a) notify the Commonwealth immediately in writing;
(b) make full disclosure of all relevant information relating to the conflict; and
(c) take such steps as the Commonwealth requires to resolve or otherwise deal with the conflict.
21. Books and records21.1 Recipient to keep books and records
The Recipient must:
(a) keep and require its subcontractors to keep adequate books and records, in accordance with Accounting Standards, in sufficient detail to enable:
(i) all receipts and payments related to the Program to be identified and reported in accordance with this Agreement; and
(ii) the amounts payable by the Commonwealth under this Agreement to be determined; and
(b) retain and require its subcontractors to retain for a period of seven years after the expiry or termination of this Agreement, all books and records relating to the Program.
21.2 CostsThe Recipient must bear its own costs of complying with this clause 21.
21.3 SurvivalThis clause 21 applies for the Agreement Period and for a period of seven years from the expiry or termination of this Agreement.
22. Audit and access22.1 Right to conduct audits
The Commonwealth or a representative may conduct audits relevant to the performance of the Recipient's obligations under this Agreement. Audits may be conducted of:
(a) the Recipient's operational practices and procedures as they relate to this Agreement;
(b) the accuracy of the Recipient’s invoices and Reports;
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(c) the Recipient's compliance with its confidentiality and privacy obligations under this Agreement;
(d) Material (including books and records) in the possession of the Recipient relevant to the Program or this Agreement; and
(e) any other matters determined by the Commonwealth to be relevant to the Program or this Agreement.
22.2 Access by the Commonwealth(a) The Commonwealth may, at reasonable times and on giving reasonable notice to the
Recipient:
(i) access the premises of the Recipient to the extent relevant to the performance of this Agreement;
(ii) require the provision by the Recipient, its employees, agents or subcontractors of records and information in a data format and storage medium accessible by the Commonwealth by use of the Commonwealth’s existing computer hardware and software;
(iii) inspect and copy documentation, books and records, however stored, in the custody or under the control of the Recipient, its employees, agents or subcontractors; and
(iv) require assistance in respect of any inquiry into or concerning the Program or this Agreement. For these purposes an inquiry includes any administrative or statutory review, audit or inquiry (whether within or external to the Department), any request for information directed to the Commonwealth, and any inquiry conducted by Parliament or any Parliamentary committee.
(b) The Recipient must provide access to its computer hardware and software to the extent necessary for the Commonwealth to exercise its rights under this clause 22, and provide the Commonwealth with any reasonable assistance requested by the Commonwealth to use that hardware and software.
22.3 Conduct of audit and accessThe Commonwealth must use reasonable endeavours to ensure that:
(a) audits performed pursuant to clause 22.1; and
(b) the exercise of the general rights granted by clause 22.2 by the Commonwealth,
do not unreasonably delay or disrupt in any material respect the Recipient's performance of its obligations under this Agreement or its business.
22.4 CostsUnless otherwise agreed in writing, each party must bear its own costs of any reviews and/or audits.
22.5 Auditor-General and Australian Information CommissionerThe rights of the Commonwealth under clause 22.2(a)(i) to 22.2(a)(iii) apply equally to the Auditor-General or a delegate of the Auditor-General, or the Australian Information Commissioner or a delegate of the Australian Information Commissioner, for the purpose of performing the Auditor-General's or the Australian Information Commissioner's statutory functions or powers.
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22.6 Recipient to comply with Auditor-General's requirementsThe Recipient must do all things necessary to comply with the Auditor-General’s or his or her delegate's or the Australian Information Commissioner's or his or her delegate's requirements, notified under clause 22.2, provided such requirements are legally enforceable and within the power of the Auditor-General, the Australian Information Commissioner, or his or her respective delegate.
22.7 No reduction in responsibilityThe requirement for, and participation in, audits does not in any way reduce the Recipient's responsibility to perform its obligations in accordance with this Agreement.
22.8 Subcontractor requirementsThe Recipient must ensure that any subcontract entered into for the purpose of this Agreement contains an equivalent clause granting the rights specified in this clause 22.
22.9 No restrictionNothing in this Agreement reduces limits or restricts in any way any function, power, right or entitlement of the Auditor-General or a delegate of the Auditor-General or the Privacy Commissioner or a delegate of the Australian Information Commissioner. The rights of the Commonwealth under this Agreement are in addition to any other power, right or entitlement of the Auditor-General or a delegate of the Auditor-General or the Australian Information Commissioner or a delegate of the Australian Information Commissioner.
Note: The effect of clause 4 of this Agreement is that this clause 22 applies for the Agreement Period and for a period of seven years from the expiry or termination of this Agreement.
23. Dispute resolution23.1 No arbitration or court proceedings
If a dispute arises in relation to the conduct of this Agreement (Dispute), a party must comply with this clause 23 before starting arbitration or court proceedings except proceedings for urgent interlocutory relief. After a party has sought or obtained any urgent interlocutory relief, that party must follow this clause 23.
23.2 NotificationA party claiming a Dispute has arisen must give the other parties to the Dispute notice setting out details of the Dispute.
23.3 Parties to resolve DisputeDuring the 14 days after a notice is given under clause 23.2 (or longer period if the parties to the Dispute agree in writing), each party to the Dispute must use its reasonable efforts through a meeting of CEOs (or their nominees) to resolve the Dispute. If the parties cannot resolve the Dispute within that period, they must refer the Dispute to a mediator if one of them requests.
23.4 Appointment of mediatorIf the parties to the Dispute cannot agree on a mediator within seven days after a request under clause 23.3, the chairperson of LEADR or the chairperson's nominee will appoint a mediator.
23.5 Role of mediator and obligations of partiesThe role of a mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a binding decision on a party to the Dispute except if the party agrees in writing. Unless agreed by the mediator and parties, the mediation must be held within 21 days of the request for mediation in clause 23.3. The parties must attend the mediation and act in good faith to genuinely attempt to resolve the Dispute.
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23.6 ConfidentialityAny information or documents disclosed by a party under this clause 23:
(a) must be kept confidential; and
(b) may only be used to attempt to resolve the Dispute.
23.7 CostsEach party to a Dispute must pay its own costs of complying with this clause 23. The parties to the Dispute must equally pay the costs of any mediator.
23.8 Termination of processA party to a Dispute may terminate the dispute resolution process by giving notice to each other party after it has complied with clauses 23.1 to 23.5. Clauses 23.6 and 23.7 survive termination of the dispute resolution process.
23.9 Breach of this clauseIf a party to a Dispute breaches clauses 23.1 to 23.8, the other party does not have to comply with those clauses in relation to the Dispute.
24. Termination24.1 Termination and reduction for convenience
(a) The Commonwealth may, at any time, by notice, terminate this Agreement or reduce the scope of the Program.
(b) On receipt of a notice of termination or reduction the Recipient must:
(i) take all available steps to minimise loss resulting from that termination or reduction and to protect Commonwealth Material and Agreement Material; and
(ii) continue to undertake any part of the Program not affected by the notice.
(c) If this Agreement is terminated under this clause 24.1, the Commonwealth is liable only for:
(i) subject to clause 24.4, payments under clause 6 in accordance with this Agreement before the effective date of termination; and
(ii) subject to clause 24.1(e) and (f) reasonable costs actually incurred by the Recipient and directly attributable to the termination.
(d) If the scope of the Program is reduced, the Commonwealth's liability to pay the Funds or to provide Commonwealth Material abates in accordance with the reduction in the Program.
(e) The Commonwealth is not liable to pay compensation under clause 24.1(c)(ii) for an amount which would, in addition to any amounts paid or due, or becoming due, to the Recipient under this Agreement, exceed the total Funds payable under this Agreement.
(f) The Recipient is not entitled to compensation for loss of prospective profits.
24.2 Termination for default(a) Without limiting any other rights or remedies the Commonwealth may have against the
Recipient arising out of or in connection with this Agreement, the Commonwealth may terminate this Agreement effective immediately by giving notice to the Recipient if:
(i) the Recipient breaches a material provision of this Agreement where that breach is not capable of remedy;
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(ii) the Recipient breaches any provision of this Agreement and fails to remedy the breach within 14 days after receiving notice requiring it to do so;
(iii) in the opinion of the Commonwealth, a conflict of interest exists which would prevent the Recipient from performing its obligations under this Agreement;
(iv) the Commonwealth is satisfied that any statement made in the Recipient's application for funding (if any) is incorrect, incomplete, false or misleading in a way which would have affected the original decision to approve the provision of the Funds; or
(v) an event specified in clause 24.2(c) happens.
(b) Without limitation, for the purposes of clause 24.2(a)(i), each of the following constitutes a breach of a material provision:
(i) breach of warranty under clause 4.1 (Warranties);
(ii) breach of clause 6 (Funds);
(iii) a failure to comply with clause 11 (Intellectual Property Rights);
(iv) a failure to comply with clause 14 (Insurance);
(v) a failure to comply with clause 16 (Confidentiality);
(vi) a failure to comply with clause 19 (Protection of personal information); and
(vii) a failure to notify the Commonwealth of a conflict of interest under clause 19.5(a) (Conflict of interest).
(c) The Recipient must notify the Commonwealth immediately if:
(i) there is any change in the direct or indirect beneficial ownership or control of the Recipient;
(ii) the Recipient disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
(iii) the Recipient ceases to carry on business;
(iv) the Recipient ceases to be able to pay its debts as they become due;
(v) proceedings are initiated with a view to obtaining an order for the winding up of the Recipient, or any person convenes a meeting for the purpose of considering or passing any resolution for the winding up of the Recipient;
(vi) the Recipient applies to come under, the Recipient receives a notice requiring it to show cause why it should not come under, an order has been made for the purpose of placing the Recipient under, or the Recipient otherwise comes under one of the forms of external administration referred to in Chapter 5 of the Corporations Act or Chapter 11 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) or equivalent provisions in State or Territory legislation in relation to incorporated associations;
(vii) the Recipient being a natural person is declared bankrupt or assigns his or her estate for the benefit of creditors;
(viii) where the Recipient is a partnership, any step is taken to dissolve that partnership; or
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(ix) anything analogous to an event referred to in clause 24.2(c)(v), (vi), (vii) or (viii) occurs in relation to the Recipient.
24.3 After terminationOn termination of this Agreement the Recipient must deal with Commonwealth Material and the Commonwealth's Confidential Information in accordance with this Agreement and otherwise as reasonably directed by the Commonwealth.
24.4 Commonwealth rightsWithout limiting any of the Commonwealth's other rights or remedies, on termination of this Agreement, the Commonwealth is not obliged to pay to the Recipient any outstanding amount of the Funds.
24.5 Termination does not affect accrued rightsTermination of this Agreement does not affect any accrued rights or remedies of a party.
25. SurvivalThe following clauses survive the expiry or termination of this Agreement:
(a) Clause 7 (GST);
(b) Clause 8 (Repayment);
(c) Clause 10.2 (Reporting);
(d) Clause 10.3 (Evaluation);
(e) Clause 11 (Intellectual Property Rights);
(f) Clause 12 (Moral Rights);
(g) Clause 13 (Indemnity);
(h) Clause 14 (Insurance);
(i) Clause 16 (Acknowledgment of support);
(j) Clause 17 (Confidentiality);
(k) Clause 1918 (Protection of personal information);
(l) Clause 21 (Books and records);
(m) Clause 22 (Audit and access) for a period of seven years from the expiry or termination of this Agreement;
(n) Clause 24.4 (Commonwealth rights); and
(o) Clause 27.2 (Amounts due to Commonwealth),
together with any provision of this Agreement which expressly or by implication from its nature is intended to survive the expiry or termination of this Agreement.
26. Notices and other communications26.1 Service of Notices
A Notice must be:
(a) in writing, in English and signed by a person duly authorised by the sender; and
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(b) hand delivered or sent by prepaid post or other electronic means (facsimile and/or email as specified) to the recipient's address for Notices specified in item 20 of Schedule 1, as varied by any Notice given by the recipient to the sender.
26.2 Effective on receiptA Notice given in accordance with clause 26.1 takes effect when it is taken to be received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); or
(c) if sent by facsimile, when the sender's facsimile system generates a message confirming successful transmission of the entire Notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice;
(d) if sent by email, as provided under sections 14 and 14A of the Electronic Transactions Act 1999 (Cth),
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
27. Miscellaneous27.1 No security
The Recipient must not use any of the following as any form of security for the purpose of obtaining or complying with any form of loan, credit, payment or other interest, or for the preparation of, or in the course of any litigation:
(a) this Agreement or any of the Commonwealth's obligations under this Agreement; or
(b) any Intellectual Property Rights in Agreement Material.
27.2 Amounts due to Commonwealth(a) Without limiting any other of the Commonwealth's rights or remedies, any amount owned
or payable to the Commonwealth (including by way of refund), or which the Commonwealth is entitled to recover from the Recipient, under this Agreement will be recoverable by the Commonwealth as a debt due and payable to the Commonwealth by the Recipient.
(b) The Commonwealth may set-off any money due for payment by the Commonwealth to the Recipient under this Agreement against any money due for payment by the Recipient to the Commonwealth under this Agreement.
27.3 Ownership of AgreementAll copyright and other Intellectual Property Rights contained in this Agreement remain the property of the Commonwealth.
27.4 VariationNo agreement or understanding varying or extending this Agreement is legally binding upon either party unless the agreement or understanding is in writing and signed by both parties.
27.5 Approvals and consentsExcept where this Agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this Agreement.
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27.6 Assignment and novationA party may only assign its rights or novate its rights and obligations under this Agreement with the prior written consent of the other party.
27.7 CostsEach party must pay its own costs of negotiating, preparing and executing this Agreement.
27.8 CounterpartsThis Agreement may be executed in counterparts. All executed counterparts constitute one document.
27.9 No mergerThe rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
27.10 Entire agreementThis Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
27.11 Further actionEach party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transaction contemplated by it.
27.12 SeverabilityA term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the terms of this Agreement continue in force.
27.13 WaiverWaiver of any provision of or right under this Agreement:
(a) must be in writing signed by the party entitled to the benefit of that provision or right; and
(b) is effective only to the extent set out in any written waiver.
27.14 Relationship(a) The parties must not represent themselves, and must ensure that their officers, employees,
agents and subcontractors do not represent themselves, as being an officer, employee, partner or agent of the other party, or as otherwise able to bind or represent the other party.
(b) This Agreement does not create a relationship of employment, agency or partnership between the parties.
27.15 Governing law and jurisdictionThis Agreement is governed by the law of the Australian Capital Territory and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.
27.16 False or misleading information(a) The Recipient acknowledges that giving false or misleading information to the
Commonwealth is a serious offence under section 137.1 of the Criminal Code Act 1995.
(b) The Recipient must ensure that any subcontractor engaged in connection with the Agreement acknowledges the information contained in this clause.
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Note: Under section 137 of the Criminal Code giving false or misleading information to a Commonwealth entity is an offence, but only if the Commonwealth entity took reasonable steps to inform the person of the offence.
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Schedule 1 – Agreement Details
Item number Description Clause Reference Details
1. Commonwealth 1.1 Commonwealth of Australia as represented by the Department of Industry
10 Binara St
Canberra
ACT 2600
ABN 74 599 608 295
2. Recipient 1.1 [insert name of Recipient]
[insert place of business street address]
[insert ABN - - / - - - / - - - / - - -
3. Commonwealth Representative
1.1 and 10.1 The person occupying [insert position held] currently [insert name of Commonwealth representative]
4. Recipient Representative
1.1 and 10.1 The person occupying Finance Manager currently Sonila Rudi
5. Program 1.1 Ethanol Production Grants program
6. Commencement Date
1.1 and 3 [insert date Agreement is to commence eg, dd/mm/yy
or the last date the Agreement is signed
or on occurrence of a specified event - specify whichever applicable]
7. End Date 1.1 and 3 [insert date the Agreement is to end eg, dd/mm/yy ]
8. Guidelines and principles
1.1 Ethanol Production Grants programme administrative guidelines
9. Policy and requirements
1.1 not applicable
10. Acknowledgment of support
1.1 The Australian Government provides grants to producers of eligible domestically produced ethanol under the Ethanol Production Grants programme.
11. Subcontractors 1 not applicable
12. Asset register 1 not applicable
13. Commonwealth 1.1 not applicable
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Item number Description Clause Reference Details
Material
14. Pre-existing Material
1.1 not applicable
15. Intellectual Property Rights – licences
11.3 not applicable
16. Warranted Materials
11.4(c) not applicable
17. Moral Rights – Specified Acts
12 not applicable
18. Insurance 14 not applicable
19. Confidential Information
1.1 and 16 not applicable
20. Address for Notices
26 Commonwealth: The person occupying [insert position of person] currently [insert name] is to receive Notices
PO Box 9839
Canberra ACT 2601
51 Allara St
Canberra ACT 2601
Recipient: The person occupying [insert position of person] currently [insert name] is to receive Notices [insert postal address]
[insert place of business street address]
[insert facsimile number]
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Schedule 2– Reporting
1. Records to be kept(a) The Recipient must keep, or otherwise ensure that it has all necessary access to for the
purposes of this schedule 2, to the Commonwealth’s satisfaction:
(i) all records (including original receipts and invoices) relating in any way to a Claim for Funds made by the Recipient, including records which show the type, source and quantity of feedstocks used in the production of any Eligible Ethanol made the subject of a Claim.
(ii) all records (including original receipts and invoices) relating to the Eligible Ethanol necessary to provide a complete, detailed record and explanation of:
(A) the volume of Eligible Ethanol entered for home consumption under section 58 or section 61C of the Excise Act 1901 during the term of this Agreement; and
(B) the Duty paid on Eligible Ethanol during the term of this Agreement; and
(C) any refund of Duty in respect of which payment has been made; and
(D) copies of all materials on which the Recipient has relied in making a Report under item 2 of this schedule; and
(E) any other records relating to the Eligible Ethanol which are required by the Commonwealth to be kept, as notified to the Recipient from time to time.
(b) The Recipient must retain the records referred to here during the term of this Agreement and for 5 years after the Completion Date.
2. Reporting requirements(a) The Recipient must give to the Commonwealth quarterly reports and other reports relating
to the Recipient’s Claims and obligations under this Agreement, containing the matters and at the times required by the Commonwealth from time to time, as follows:
(i) every three months
(A) 31 July for the quarter ending 30 June;
(B) 31 October for the quarter ending 30 September;
(C) 31 January for the quarter ending 31 December; and
(D) 30 April for the quarter ending 31 March,
of each year during the term of this Agreement, and
(ii) within 30 days of the date on which this Agreement is terminated.
(b) If, in the Commonwealth’s reasonable opinion, either the form or the content of a Report is not adequate for the Commonwealth’s purposes and the Commonwealth gives notice to the Recipient to that effect, the Recipient must submit a revised Report satisfactory to the Commonwealth within 14 days of receipt of notice by the Recipient.
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(c) Notwithstanding item 2(b), if, in the Commonwealth’s reasonable opinion, the statements in a Recipient’s Report require further verification in order to be accepted by the Commonwealth, the Commonwealth may notify the Recipient in writing that the Recipient must obtain an independent audit from an appropriately qualified expert acceptable to the Commonwealth to support the statements made in the Report.
(d) If the Commonwealth requires an independent audit under item 2(c), the Recipient must provide the audit within the time frame, and in the form, specified in the notice requiring the independent audit.
(e) The independent audit under item 2(c) will be obtained at the Recipient’s cost.
3. Extension of time for Reports(a) Before the due date for submission of a Report, the Recipient may, in writing setting out
the reason for the application, apply for an extension of time for submission of the Report.
(b) The Commonwealth may, in its absolute discretion, grant to the Recipient an extension of time ending on a specific date for submission of a Report.
4. Failure to submit Reports(a) If the Recipient fails to submit two or more Reports consecutively by the due dates for
submission (or, where the Commonwealth has granted the Recipient an extension under item 7(e) the due date for submission as extended under item 7(e)), the Commonwealth may by notice in writing terminate this Agreement.
5. Records to be provided to the Commonwealth on request(a) Without limiting items 2(a), 2(b), 6(b), 7(a) and 7(b) and subject to item 5(b), the
Recipient must provide to the Commonwealth within 14 days of request by the Commonwealth, or within such longer period as may be specified in the request, a copy of any document provided by the Australian Taxation Office in relation to Eligible Ethanol in respect of which the Recipient has made a Claim.
(b) If the Recipient is not in possession of a document or record requested pursuant to item 5(a), the Recipient must immediately:
(i) obtain a copy of the document or record from the Australian Taxation Office and provide it to the Commonwealth within 14 days of the Recipient receiving it from the Australian Taxation Office; or
(ii) arrange for a copy of the document or record from the Australian Taxation Office to be provided to the Commonwealth within 14 days of the document being obtained from the Australian Taxation Office.
6. Requesting further information(a) The Commonwealth may request from the Recipient additional information which relates
to this Agreement or the Recipient’s participation in the Program.
(b) If the Commonwealth requests information under item 6(a), the Recipient must provide the information to the Commonwealth within 14 days of the request or such other time as is agreed between the parties.
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7. Evaluation(a) The Recipient must cooperate in the evaluation of the Program by the Commonwealth.
(b) During the term of this Agreement and for 7 years after the date on which this Agreement is terminated, the Recipient must, within 14 days of a request by the Commonwealth to do so, or within such longer period as may be specified in the request, provide information and completed survey forms relating to the Program and this Agreement.
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Schedule 3 Signing page
EXECUTED as an agreement.
Signed for and on behalf of the Commonwealth of Australia as represented by the Department of Industry by its duly authorised delegate in the presence of
Signature of witness Signature of delegate
Name of witness (print) Name of delegate (print)
Position of delegate (print)
Executed by [insert name of company] in accordance with section 127 of the Corporations Act 2001 in the presence of
Signature of director Signature of director/company secretary/sole director
and sole company secretary(Please delete as applicable)
Name of director (print) Name of director/company secretary/sole director and sole company secretary (print)
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Attachment A Ethanol Production Grants funding claim form (standard)This form should be used when the duty on the relevant ethanol has been paid by the recipient.Attn: Programme Manager
Ethanol Production Grants programmeDepartment of IndustryEmail: [email protected]
In accordance with the funding agreement between the Commonwealth of Australia represented by the Department of Industry and [full company name of recipient], I hereby apply for funding at the grant rate of 38.143 cents per litre for:Litres of ethanolTotal funding amount of this claim $
I warrant that the ethanol for which I am claiming funding is all eligible ethanol, as defined under clause 1.1 of the Funding Agreement, and that none of the ethanol to which this claim relates has been imported.
I also warrant that excise duty at 38.143 cents per litre has been paid on the ethanol for which I am claiming funding.
In support of this claim, I have attached: a copy of the Australian Taxation Office Excise Return form, that deals with the entry into home
consumption of the ethanol for which I am claiming funding; and evidence of the electronic funds transfer for the duty paid on the ethanol referred to in the Excise
Return form.The amount of this Claim is less than the amount of excise duty paid for the same period by$ because litres of excised ethanol is
derived from imported ethanol and is not eligible for funding.I request direct payment by electronic funds transfer to the following account:BankBranchAddressAccount nameBSBAccount number
Declared by: (must be an authorised employee of the Recipient)Full nameJob titleTelephone numberEmail address
Signature
Date
Claim contact details (if different to above):Full nameTelephone numberEmail address
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