dewr template long form contract for services web viewparties. this agreement is made between and...

FUNDING AGREEMENT

IN RELATION TO THE ENTREPRENEURSHIP FACILITATORS INITIATIVE

Commonwealth of Australia represented by the Department of Employment

ABN 54 201 218 474

[Insert name of legal entity that is the Entrepreneurship Facilitator]

ABN [Insert ABN of legal entity that is the Entrepreneurship Facilitator]

FUNDING AGREEMENT IN RELATION TO ENTREPRENEURSHIP FACILITATORS

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Section 1 – PARTIES TO, AND CONTEXT OF, AGREEMENT 5

Section 2 – AGREEMENT DETAILS AND KEY TERMS & CONDITIONS 6A. Services and Services Period 6A.1. Services Period and Completion Date 6A.2. Engagement and Market Strategy 6A.3. Details of the Services 6A.4. Your principal obligations in relation to the Services 7A.5. Your obligations in relation to the Location and Sites 8A.6. Performance Measurement 8A.7. Specified Personnel 9A.8 Services Material 9

B. Funding and Payment 9B.1. Funding and payment 9B.2. Milestones and Payments 10B.3. Use of Funding 13B.4. Invoices 13B.5. Payment 14

C. Budget 14C.1. Budget 14C.2. Budget flexibility 15

D Services Officer 15

E. Assets 15E.1. Approved Assets 15E.2. Asset Register 15

F. Client data and information 16F.1 Client data and information 16F.2. Types of data and information to be collected 16F.3. Providing Us with data and information 16

G. Reporting 16G.1. Reporting Obligations 16G.2 Provision of audited detailed statement at end of Services Period 16G.3. Progress Reports 17G.4. Final Report 18G.5. Other Reports 18

H. Commonwealth Material 19

I. Existing Material 19

J. Moral Rights 19J.1. Permitted Acts 19

2FUNDING AGREEMENT IN RELATION TO ENTREPRENEURSHIP FACILITATORS

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K. Confidential Information 19K.1. Your Confidential Information 19K.2 Our Confidential Information 19

L. Acknowledgement and publicity 20L.1. Manner of acknowledgement 20L.2. Requirements for advertisements and other public relations matters 20

M. Our address for Notices 20

N. Your address for Notices 20

O. Insurance 20O.1. Required insurance 20

P. Compliance with laws and policies 21P.1. Cybersafety 21P.2. Compliance with WHS Laws 21

Q. Work Health and Safety 22Q.1. Incidents 22

R. Map of Location 23

SECTION 3 ADDITIONAL TERMS AND CONDITIONS 241. Interpretation 242. Funding 263. Other Contributions 274. Records 285. Security 316. Fraud 317. Subcontractors 318. Specified Personnel 319. Your responsibility 3210. Assets 3312. Intellectual Property 3511. Liaison and monitoring 3513. Disclosure of Information 3614. Personal Information 3815. Acknowledgement and Publicity 3916. Liability 4017. Dispute resolution 4118 Termination or reduction in scope of Activities 4219. Termination for default 4420. Notices 4521 Corporate Governance 4622. General provisions 47


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SCHEDULE 4 GLOSSARY 51

IntroductionThe Australian Government is committed to encouraging Entrepreneurship and self-employment among young people. These are powerful options for overcoming unemployment, however, only a small number of job seekers pursue this pathway. Research shows that many young job seekers have business ideas, but lack the capacity and support to develop these ideas into a successful business. They are often confronted by barriers such as, lack of business training and access to finance, lack of business networks and an inability to explore and select sustainable business ideas.

In the 2016–17 Federal Budget, the Government provided funding to support Entrepreneurship Facilitators — one measure of the broader Encouraging Entrepreneurship and Self-employment package, which itself was part of the Youth Employment Package.

The objectives of Entrepreneurship Facilitators are to:

Promote Entrepreneurship and self-employment to young people in identified regions. Encourage young people to develop new business ideas Assist potential young entrepreneurs in accessing assistance to support and establish their own

business Provide linkages into existing programs including New Enterprise Incentive Scheme (NEIS).

An Entrepreneurship Facilitator will be appointed in each of the three identified locations of Cairns (Qld), Hunter (NSW) including Newcastle, and Launceston and North East Tasmania.

1. Overview

Entrepreneurship Facilitators will service the priority target audience of young Australians aged 18-24, who are not in education, employment or training. However, Entrepreneurship Facilitators will work with people of all ages and backgrounds including Indigenous people, redundant workers, refugees and people from Culturally and Linguistically Diverse (CALD) background, and people no on income support.

The Entrepreneurship Facilitators is a separate measure from other Department of Employment measures, including Employment Facilitators, jobactive and the New Enterprise Incentive Scheme.

The initiative will commence on 1 December 2016 and end on 30 June 2020.

2. Structure of this Funding AgreementThis Funding Agreement is structured as follows:

Section 1 – Parties to, and Context of, Agreement – This section describes the parties to this Agreement, and the context of the entry by those parties into this Agreement.

Section 2 – Agreement Details and Key Terms & Conditions – This section sets out the key details of the Services that the Entrepreneurship Facilitator must provide, and the details of key terms and conditions to be complied with in relation to undertaking the Services.

Section 3 – Additional Terms and Conditions – This section sets out the detailed additional terms and conditions that the parties to this Agreement are agreeing to comply with.

Section 4 – Glossary – This section sets out the definitions that are used in this Agreement.


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SECTION 1 - PARTIES TO, AND CONTEXT OF, AGREEMENTParties

This Agreement is made between and binds the following Parties:

1. Commonwealth of Australia (‘Commonwealth’, ‘Us’, ‘We’ or ‘Our’) represented by and acting through the Department of Employment, ABN 54 201 218 474 (‘Department’)

2. [Insert name of legal entity that is the Entrepreneurship Facilitator] ABN [Insert ABN of legal entity that is the Entrepreneurship Facilitator] (‘You’, or ‘Your’)

Context

A. We administer measures that aim to lower youth unemployment by expanding self-employment opportunities and encouraging entrepreneurship among young Australians.

B. To help achieve this aim, We have appointed Entrepreneurship Facilitators (including You) in selected locations with very high youth unemployment and low uptake of youth self-employment to promote entrepreneurship and join up youth with available services and programmes (such as jobactive, New Enterprise Incentive Scheme, microfinance services and start-up incubators).

C. You are committed to helping achieve this aim through Your conduct of the Services.

D. As a result of this commitment, We agree to support the Services by providing the Funding to You, subject to the terms and conditions of this Agreement.

E. You agree to accept the Funding on the terms and conditions set out in this Agreement.


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SECTION 2 - AGREEMENT DETAILS and KEY TERMS & CONDITIONS

A. SERVICES AND SERVICES PERIOD

A.1. Services Period and Completion Date

A.1.1 The Services Period commences on execution by Us of this Agreement and ends on 30 June 2020.

A.1.2 The Completion Date is [Insert date on which this Agreement expires. Note that the Services Period (being the period within which the Services must be completed) can end sooner. It is common for the Final Report to be required to be submitted after the end of the Services Period but before the Completion Date.].

A.2. Engagement and Marketing Strategy

A.2.1 You must, by 31 January 2017 (or such later date as Notified to You by Us):

a. prepare an Engagement and Marketing Strategy that details:

i. how You will comply with item A.3 of this Section 2;

ii. the Services that You will provide in addition to those described in item A.3 of this Section 2;

iii. Your Budget (see item C of this Section 2),

for the period from 1 February 2017 (or such later date as Notified to You by Us) up to and including 30 June 2017; and

b. provide a copy to Us for Our approval; and

by each 1 June (or such later date as Notified to You by Us) during the Term, produce to Us for Our approval an updated Engagement and Marketing Strategy that details updates against the matters described in item A.2.1a. for the upcoming Financial Year.

A.2.2 If We do not approve the Engagement and Marketing Strategy or any updated Engagement and Marketing Strategy, as the case may be, You must comply with any request from Us to amend the Engagement and Marketing Strategy to a point where We can approve it, and then submit the revised Engagement and Marketing Strategy to Us.

A.3. Details of the Services

A.3.1 You must during the Services Period, carry out the Services which should include, but are not limited to, the following:

Undertake Marketing activities

a. undertake marketing activities:

i. that promote the Services to, and attract, potential Clients in the Location, giving priority to, and actively seeking out, the Target Audience; and

ii. in a range of ways, that:


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A. must include, but are not limited to, social media posts, online or print advertisements, contacting youth organisations directly and through the Jobsearch.gov.au and jobjumstart.gov.au websites; and

B. could (for example) include marketing via radio, television or other similar methods;

Engage Clients

b. assist people of all ages and backgrounds, focussing on the Target Audience but also including Indigenous people, redundant workers, refugees and people from culturally and linguistically diverse backgrounds and people not on income support who wish to become Clients;

c. tailor the Services so that any information provided or available is suitable to Clients’ particular circumstances, including their level of education and their Entrepreneurship Barriers; and

d. provide mentoring support to Clients, including Youth Clients in particular, or assisting Clients to access other mentors or business partners in the Location, office space, equipment and ongoing business training. If mentoring is provided to Clients, this must be provided in a way that complies with any Guidelines issued by Us;

e. be available to provide face-to- face Services:

i. from the premises located at [Insert address of the Site ]; and

ii. for a minimum of [Insert number of hours ] hours per fortnight between the hours of 8am and 5pm on Business Days;

Community engagement

f. promoting Entrepreneurship as a viable employment option, including, but not limited to, by providing information on the services that are available to help Clients start their own business;

g. presenting at relevant places or events in the Location, including, but not limited to, schools, youth organisations, jobs fairs and community meetings;

h. arranging networking opportunities for Clients with people who are starting, or already have successfully started, their own business, or with reputable people or organisations that could assist Clients to start their own business;

Linking to other relevant services

i. assisting Clients by providing them with information on existing relevant services including, but not limited to, services or programs provided or run by State and Commonwealth agencies, organisations with a reputation for providing high quality financial services, or appropriate and reputable business incubators or accelerators and training institutions with relevant business-related courses.

A.4. Your principal obligations in relation to the Services

A.4.1 You must carry out the Services:


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a. in accordance with the Engagement and Marketing Strategy;

b. as specified in item A of this Section 2;

c. to achieve the Objectives;

d. during the Services Period;

e. in accordance with this Agreement;

f. diligently, effectively and to a high standard.

A.4.2 You must not, and You must ensure that Your Personnel do not, act in a way that brings or may bring the Services, the Entrepreneurship Facilitators initiative or Us into disrepute.

A.5. Your obligations in relation to the Location and Sites

A.5.1 You must provide the Services across the entire Location.

Note: a map of the Location is set out at item R of this Section 2.

A.5.2 You must provide the Services from the following sites in the Location:

[insert addresses of Sites]

A.5.3 You must ensure that:

a. the Site is:

i. accessible to people with a disability; and

ii. presented in a manner that upholds and maintains the good reputation of the Services, as determined by Us; and

b. You take all reasonable steps to avoid acts or omissions that You could reasonably foresee would be likely to cause injury to any persons at the Site.

A.6. Performance Measurement

A.6.1 Throughout the Term, We may conduct Assurance Activities to determine if You are meeting Your obligations under this Agreement and You must fully cooperate with Us in relation to all such activities as required by Us. Without limitation, You agree that:

a. Assurance Activities may be undertaken by Us for the purposes of evaluating the Services, and may include, but are not limited to:

i. Us monitoring, measuring and evaluating the conduct of the Services by You;

ii. Your Personnel and Clients being interviewed by Us or an independent evaluator nominated by Us; and

iii. You giving Us or Our evaluator access to Your premises and Records in accordance with clause 4.7 (Access to premises and Records) of Section 3; and

b. You must fully cooperate with Us in relation to all such Assurance Activities, including by:

i. providing all reasonable assistance required by Us;


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ii. responding to all Our reasonable requests; and

iii. providing any information We reasonably require,

in relation to the Assurance Activities.

A.6.2 Without limiting item A.6.1 above, We will monitor Your performance in delivering the Services in accordance with this Agreement and in accordance with the Engagement and Marketing Strategy using the performance assessment method set out below and as detailed in any Guidelines, or using any additional or other performance assessment method (including, without limitation, the imposition of, and measurement of Your performance against, key performance indicators that are Notified to You) as We determine is appropriate from time to time in our absolute discretion.

Traffic light performance measures

A.6.3 We will monitor and rate Your performance in delivering the Services in accordance with a rating system and methodology set out in the Guidelines.

A.7. Specified Personnel (see clause 8 (Specified Personnel) of Section 3)

A.7.1 The Specified Personnel are:

a. [Insert name]

A.8. Services Material:

A.8.1 If requested by Us, You must provide a copy of any Services Material to Us in the form specified by Us within the timeframe specified by Us.

B. FUNDING AND PAYMENT (see clause 2 (Funding) of Section 3)

B.1. Funding and payment

B.1.1 Subject to sufficient funds being available for the Entrepreneurship Facilitators initiative, the total Funding payable by Us for the Services is $957,000 GST exclusive.

B.1.2 Subject to compliance by You with this Agreement and to Our assessment of Your performance as detailed in item A.6 of this Section 2, We will pay You the Funding at the times and in the manner specified in the table set out in item B.2.1 of this Section 2.

B.1.3 Without limiting Our rights, We may withhold or suspend any payment in whole or in part if We are of the opinion that Your performance of any of Your obligations under this Agreement (including without limitation the Engagement and Marketing Strategy) is less than satisfactory to Us.

B.1.4 We may reduce the amount of Funding payable under this Agreement where You:

a. owe money to Us; or

a. have money that You should have, but have not yet, acquitted,

under any arrangement with Us (whether contractual, statutory or otherwise).


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B.1.5 If We exercise Our rights under items B.1.3 or B.1.4 of this Section 2, or Our rights under clause 2.2 (Repayments) of Section 3, You must continue to perform any obligations under this Agreement, unless We agree otherwise in writing.

B.2. Milestones and Payments

B.2.1 The Milestones and, subject to this Agreement, payment of the Funding are:

Milestone and Description

Payment Amount (subject to Our rights under this Agreement) (GST excl)

Milestone Due Date

Timing of Payment (without limiting Our rights under this Agreement)

Signed Funding Agreement(note, incorporates payment for Engagement and Marketing Strategy for 2016-17)

Provision of satisfactory Engagement and Marketing Strategy - We approve the Engagement and Marketing Strategy You provide to Us in accordance with items A.2.1 and A.2.2 of this Section 2.

$155,000 December 2016

31 January 2017

On execution of the Funding Agreement by December 2016

Milestone 1Provision of Progress ReportProvision by You to Us of a Progress Report to Our satisfaction which covers the period from execution up to and including 31 March 2017.

$47,000 31 March 2017 Following Our agreement the

Progress Report is satisfactory

Milestone 2Provision of Progress ReportProvision by You to Us of a Progress Report to Our satisfaction which covers the period from the 1 April 2017 to 30 June 2017

Provision by You to Us of an updated Engagement and Marketing Strategy to Our satisfaction which covers the period 1 July 2017 up to and including 30 June 2018

$47,000

$48,000

30 June 2017

14 July 2017

Following Our agreement the


When We approve the updated

Engagement and Marketing Strategy under item A.2.4 of

this Section 2,.Milestone 3Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from

$47,000 30 September 2017




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Milestone Due Date


1 July 2017 up to and including 30 September 2017Milestone 4Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 October 2017 up to and including 30 December 2017

$47,000 30 December 2017



Milestone 5Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 January 2018 up to and including 30 March 2018.



Milestone 6Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 April 2018 up to and including 30 June 2018

Provision by You to Us of an updated Engagement and Marketing Strategy to Our satisfaction which covers the period 1 July 2018 up to and including 30 June 2019

$47,000

$48,000

30 June 2018

1 July 2018





this Section 2,.Milestone 7Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 July 2018 up to and including 30 September 2018

$47,000 30 September 2018

Following our agreement the


Milestone 8Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 October 2018 up to and including 30

$47,000 30 December 2018




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Milestone Due Date


December 2018Milestone 9Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 January 2019 up to and including 30 March 2018



Milestone 10Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 April 2019 up to and including 30 June 2019

Provision by You to Us of an updated Engagement and Marketing Strategy to Our satisfaction which covers the period from 1 July 2019 up to and including 30 June 2020

$47,000

$48,000

1 June 2019

1 July 2019





this Section 2,.Milestone 11Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 July 2019 up to and including 30 September 2019

$47,000 30 September 2019



Milestone 12Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 October 2019 up to and including 30 December 2019

$47,000 30 December 2019



Milestone 13Provision of Progress Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 January 2020 up to and including 30 March 2020



Milestone 14 $47,000 30 June 2020 Following the


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Milestone Due Date


Provision of Final Report - Provision by You to Us of a Progress Report to Our satisfaction which covers the period from 1 April 2020 up to and including 30 June 2020

Department agreeing the Final

Report is satisfactory

Total $957,000

B.3 Use of Funding

B.3.1 The Funding must be expended by You only for undertaking the Services.

B.3.2 You must do all things necessary to ensure that all payments from the Funding that You make to third parties are correctly made and properly authorised and that You maintain proper and diligent control over the incurring of all liabilities.

B.3.3 You must not use the Funds, the Agreement or any of Our obligations under the Agreement, the Assets or Intellectual Property rights in Services Material:

a. as security to obtain, or comply with, any form of loan, credit, payment or other interest; or

b. for the preparation of, or in the course of, any litigation.

B.3.4 Each payment of Funds is subject to:

a. without limiting clause 2.1.1 of Section 3, You having completed the relevant Milestone to Our satisfaction;

b. whether We have exercised Our rights under clause 2.4 (Debt and interest) of Section 3;

c. You having provided all Reports that were due prior to the payment date; and

d. where a taxable supply is made, You having provided a correct and complete tax invoice to Us as set out below, or where no taxable supply is made, You providing an invoice to Us.

B.4 Invoices

B.4.1 Invoices must include the following information:

a. where relevant, the words “tax invoice” stated prominently;

b. Your name and ABN;

c. Our name and address;


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d. the date of issue of the invoice;

e. the title of this Agreement/the name of the Services and the Agreement number (if any) or date of execution;

f. details of the items (i.e. deliverables or Milestones) to which they relate;

g. the total amount payable (including GST, where relevant);

h. where relevant, the GST amount shown separately; and

i. bank account details for the payment of the invoice by electronic funds transfer.

B.4.2 An invoice is not correctly rendered where:

a. it includes amounts that are not properly payable under this Agreement or are incorrectly calculated; or

b. it relates to a payment in relation to which We have exercised Our rights under clause 2.4.1 of Section 3.

B.4.3 All invoices must be addressed to the Services Officer.

B.5 Payment

B.5.1 Subject to the terms of this Agreement, We will make a payment of Funds to You within 20 Business Days of the conditions in this item B being satisfied.

B.5.2 Payment will be effected by electronic funds transfer (EFT) to Your following bank account

Account Name [Insert]

Bank Name [Insert]

Branch [Insert]

BSB [Insert]

Account Number [Insert]

C. BUDGET

C.1 Budget

C.1.1 Your Budget for allocating the Funding in order to provide the Services must be detailed in the Engagement and Marketing Strategy.

C.1.2 For the avoidance of doubt, You may update Your Budget for each Financial Year and submit the updated Budget for Our approval when You submit an updated Engagement and Marketing Strategy.

C.1.3 You must only spend the Funding in accordance with the Budget and this Agreement.

C.1.4 You must obtain prior written approval from Us for any changes to the Budget if those changes are not included in any updated Budget approved by Us when approving the updated Engagement and Marketing Strategy (see item A.2.1 of this Section 2).

C.1.5 Your Budget must outlined in detail the following:


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a. proposed expenditure of the Funding on administrative costs to be incurred for the purposes of providing the Services, including (but not limited to) salaries for Specified Personnel; overheads; equipment; car hire; utilities; any checks (e.g. under Working with Children laws) carried out in accordance with clause 9.2.1 of Section 3; payments to an auditor for the purposes of preparing the audited statements required in item G.2 and item G.3.2d of this Section 2;

b. proposed expenditure of the Funding on engagement and marketing costs to be incurred for the purposes of providing the Services, including (but not limited to) hosting information sessions and workshops, client and community engagement, promotion, travel expenses associated with attending meetings at Our office in Canberra;

c. any Other Contributions; and

d. any Assets purchased with the Funding for the purposes of providing the Services (which must not total more than $5,000 (GST inclusive) each Financial year).

C.2 Budget flexibility

C.2.1 You may transfer Funding between categories of expenditure items within the Budget subject to the following limitations:

a. You must seek and obtain Our prior written approval for any transfer that exceeds 10% of the total Budget for each Financial Year in which the transfer would occur; and

b. the total amount of transfers in a Financial Year must not, except with Our written approval, exceed 20% of the total Budget for that year.

D. SERVICES OFFICER

D.1 The Services Officer is the person for the time-being holding, occupying or performing the duties of [Insert details of the person in the Department who will be the main contact for this Agreement].

E. ASSETS (see clause 10 of Section 3)

E.1 Approved Assets

Assets costing (at the time of purchase) up to a total (in aggregate) of $5,000 GST inclusive each Financial Year.

E.2 Asset Register

E.2.1 You must maintain an Asset register.

E.2.2 The Asset register must contain, in relation to each Asset purchased with the Funding, details of the cost of purchase; the date of purchase; the location of the Asset; if relevant, the method and date on which the Asset was written off or disposed of.

E.2.3 You must provide the Asset register to Us within 10 Business Days of any request by Us to do so.


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F. CLIENT DATA AND INFORMATION

F.1 Client data and information

F.1.1 You must record data and information about each Client that you carry out the Services in relation to, and provide these Records to Use, in accordance with this item F.

F.1.2 If any data and information is “personal information” as defined in the Privacy Act 1988 (Cth), before collecting the data and information set out in this item F from a Client, You must obtain the written consent of the Client and inform the Client how the information will be used.

F.1.3 The Guidelines may set out a suggested form of written consent.

Note: You must comply with requirements under the Privacy Act when collecting Personal or Protected Information (see clause 14 (Personal Information).

F.2 Types of data and information to be collected

F.2.1 You must record the following data and information in relation to your conduct of the Services: a. the number of Clients that You have mentored or that You have referred to other

providers for mentoring;

b. the number of Clients that You have assisted to address their Entrepreneurship Barriers, and:

i. what particular Entrepreneurship Barriers You assisted Clients to address; and

ii. the types of assistance You provided Clients with respect to addressing their Entrepreneurship Barriers;

c. the number of Clients You have provided information to and the type of information You have provided;

d. the number and types of organisations that You have linked Clients to.

F.3 Providing Us with data and information

F.3.1 You must provide Us with the data and information collected under item F.2 of this Section 2 as outlined in the Guidelines, within 10 Business Days of any request by Us to do so to Our satisfaction.

F.3.2 When providing the data and information collected under item F.2, You must also include all past data and information previously collected item F.2.

G. REPORTING

G.1 Reporting Obligations

G.1.1 You must provide Us with Reports in relation to the Services at the times and in the manner specified in this item G.

G.2 Provision of audited detailed statement at end of Services Period


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G.2.1 Within 20 Business Days (or other period Notified by Us) of the end of the Services Period You must provide Us with:

a. an audited detailed statement of income and expenditure in respect of the Funding which must include a definitive statement as to whether the financial accounts are true and fair and a statement of the balance of Your account referred to in clause 2.1 of Section 3; and

b. an audited statement that the Funding was expended for the Services and in accordance with this Agreement.

G.2.2 The audited statements referred to in item G.2.1 must:

a. comply with the Australian Auditing Standards;

b. be carried out by a person who is:

i. registered as a company auditor under the Corporations Act 2001 (Cth), or a member of the Institute of Chartered Accountants in Australia (who is entitled to use the letters CA or FCA), or of CPA Australia (who is entitled to use the letters CPA or FCPA) or the Institute of Public Accountants (IPA) (who is entitled to use the letters MIPA or FIPA);

ii. not a principal, member, shareholder, officer, agent, subcontractor, employee or related entity of You or of a related body corporate (the terms ‘related entity’ of You and ‘related body corporate’ have the same meaning as in section 9 of the Corporations Act 2001 (Cth)); and

iii. not Your Qualified Accountant.

G.3 Progress Reports

G.3.1 You must provide Us with a Progress Report, on or before each of the dates specified in the Milestone table at item B.2.1 of Section 2, to Our satisfaction.

G.3.2 Each Progress Report must include the following:

a. information demonstrating how You are meeting the Objectives;

b. a detailed description of Your delivery of the Services to date, including:

i. a summary of progress and achievements in implementing the Services as described in the Engagement and Marketing Strategy;

ii. any other activities undertaken in delivering the Services You would like to draw to Our attention;

iii. three “success” stories – for example, these could include a description of the achievements of individual Clients, the outcome of a group activity or newly established relationships with other organisations;

iv. the number of Youth Clients that You have mentored or linked with other providers for mentoring;


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v. the number of Youth Clients that You have assisted to address their Entrepreneurship Barriers, and details of:

A. what particular Entrepreneurship Barriers You assisted them to address; and

B. how You have assisted them;

vi. the number of Clients (other than Youth Clients) that You have assisted to address their Entrepreneurship Barriers, and details of:

A. what particular Entrepreneurship Barriers You assisted them to address; and

B. how You have assisted them;

vii. the number of Youth Clients that You have provided information to, and a summary of the type of information You provided and how You provided it;

viii. the number of Clients (other than Youth Clients) that You have provided information to and a summary of the type of information You provided and how You provided it;

c. any issues or risks that have impacted, or may impact, on Your ability to conduct the Services or meet the Milestones and how You will address these for the remainder of this Agreement; and

d. in the first Progress Report provided each Financial Year, You must provide an audited detailed statement of income and expenditure as described in item G.2.1a, item G.2.1b and item G.2.2 above, in relation to the previous Financial Year.

G.4 Final Report

G.4.1 You must provide Us with a Final Report, on or before the date specified in the Milestone table at item B.2.1 of this Section 2, to Our satisfaction.

G.4.2 The Final Report must include, for the whole Services Period, the following:

a. information demonstrating how You have met the Objectives;

b. the information described in item G.3.2 of this Section 2;

c. the number of Clients that have started their own business, and details on:

i. whether the Clients are Youth Clients:

ii. the type of business they started; and

iii. the type of assistance You provided to the those Clients;

d. any issues or risks that have impacted on Your ability to conduct the Services or meet the Milestones; and

e. a summary of what worked well in delivering the Services, and any notable challenges throughout the Services Period.

G.5 Other Reports


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G.5.1 You must provide ad hoc reports in relation to the Services as Notified by Us.

H. Commonwealth Material (see clause 12.1 (Use of Commonwealth Material) of Section 3)

[Insert – If none, insert “Nil”]

I. Existing Material (see clause 12.2 of Section 3 and clause 1.1 of Section 4)

[Insert – if none, insert “Nil”]

J. Moral Rights (see clause 12.3 (Moral Rights) of Section 3)

J.1 Permitted Acts

[Insert – If none, insert “None specified”]

K. Confidential Information (see clause 13.1 (Confidential Information not to be disclosed) of Section 3)

K.1 Your Confidential Information:

a. Information contained in Agreement:

Item Period of Confidentiality

b. Information obtained or generated in performing Agreement:


None specified

K.2 Our Confidential Information:

a. Information contained in Agreement:


b. Information obtained or generated in performing Agreement:



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L. Acknowledgement and publicity (see clause 15 (Acknowledgement and publicity) of Section 3)

L.1 Manner of acknowledgement:

The Services are funded by the Australia Government Department of Employment as part of the Entrepreneurship Facilitators Initiative.

L.2 Requirements for advertisements and other public relations matters:

a. [Insert requirements]

M. Our address for Notices (see clause 20.1.1a (Notices) of Section 3)

Physical address [Insert]

Postal address [Insert]

Email [Insert]

N. Your address for Notices (see clause 20.1.1b (Notices) of Section 3)

Physical address [Insert]

Postal address [Insert]

Email [Insert]

O. Insurance (see clause 22.1)

O.1 Required insurance:

O.1.1 Unless We otherwise agree in writing, You must, for the Term, effect and maintain or cause to be effected and maintained, the following insurances, which must be valid and enforceable and, except for the workers’ compensation insurance referred to at item O.1.1a and the professional indemnity insurance or errors and omissions insurance at item O.1.1c, be written on an occurrence basis:

a. workers’ compensation as required by the relevant State or Territory legislation;

b. public liability insurance to a value of $10 million (ten million dollars) or more per claim;

c. if the performance of the Services involves providing activities or services in a professional capacity – professional indemnity insurance or errors and omissions insurance to be maintained during the Term and for at least seven years following the Completion Date with a limit of indemnity of at least $5 million in respect of each claim and in the aggregate for all claims in any one 12 month policy period.


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O.1.2 You must also:

a. effect and maintain, or cause to be effected and maintained, any other insurance policies required to adequately cover Your business risk that other entities undertaking activities similar to the Services, acting reasonably, would acquire, and any other insurance cover required by law; and

b. before You refer any Client to any person to receive services from that person, take reasonable steps to satisfy Yourself that the person has, and will maintain for the duration of any contact with the Client, all appropriate insurances in respect of any loss or injury that may be incurred or suffered by any Client arising out of or in connection with the person’s contact with the Client;

c. ensure that You retain documentary and other evidence of the steps taken by You for the purposes of item O.1.2.a and, if requested by Us, promptly provide Us with that evidence.

P. Compliance with laws and policies (see clause 22.9 (Compliance with Laws and Our Policies) of Section 3)

P.1 Cybersafety

P.1.1 For the purposes of this item P.1:

‘Clients’ means persons who may use Your computers and/ or other digital technology that is supported through public funding provided pursuant to this Agreement and includes but is not limited to You, Your staff and the public, whether they be adults or children.

‘Reasonable Steps’ means having in place strategies to minimise and manage risks of exposure to inappropriate or harmful on-line content by users of computers, and particularly children, and may include, but is not limited to, having a policy in place regarding appropriate use and protection for Clients, installation of filters, audits and provision of information or training to Your staff regarding the risks of, and protection from, inappropriate or harmful on-line content.

P.1.2 The Commonwealth’s cybersafety policy is that where an organisation is funded by the Commonwealth to carry out the Services using computers and/or other digital technology, the safety of Clients when using those computers and/or other digital technology must be assured (‘Cybersafety Policy’).

P.1.3 You must take Reasonable Steps to protect Your Clients’ cybersafety.

P.1.4 If We give You Notice, You must provide Us, within 10 Business Days of receiving the Notice, with evidence satisfactory to Us that You have complied with the requirements of this Cybersafety Policy.

P.2 Compliance with WHS Laws

P.2.1 You must at all times:

a. ensure that the Services are carried out in a safe manner;


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b. comply with any reasonable instruction from Us relating to work health and safety and any directions issued by any person having authority under the WHS Laws to do so;

c. communicate, consult and coordinate with Us in relation to health and safety matters arising from the Services (including meeting with Us as required by Us and communicating any issues or concerns, or any specific requirements applying to the Services under or arising from the WHS Laws, as soon as practicable);

d. if You are required by the WHS Act to report a Notifiable Incident to the Regulator arising out of the Services:

i. at the same time, or as soon as is possible in the circumstances, give Notice of such incident, and a copy of any written notice provided to the Regulator, to Us; and

ii. provide to Us, within such time as We specify, a Report detailing the circumstances of the incident, the results of investigations into its cause, and any recommendations or strategies for prevention in the future;

e. within 24 hours of becoming aware of such circumstances, inform Us of the full details of:

iii. any suspected contravention of the WHS Laws relating to the Services;

iv. any workplace entry by a WHS Entry Permit Holder, or an inspector appointed under the WHS Act, to any place where the Services are being performed or undertaken;

v. any proceedings against You, or any decision or request by the Regulator given to You, under the WHS Laws; and

vi. any cessation or direction to cease work relating to the Services, due to unsafe work, immediately upon You being informed of any such cessation or direction; and

f. provide Us with copies of all notices and correspondence issued to You by any person under the WHS Laws, within 24 hours of receiving any such notice or correspondence.

P.2.2 You must cooperate with any investigation undertaken by Us concerning any Notifiable Incident, or breach or alleged breach of the WHS Laws, or any audit of Your work health and safety performance, arising out of, or in respect of, the Services.

Q. Work Health and Safety

Q.1 Incidents

Q.1.1 You must Notify Us as soon as possible, and within 24 hours, of any incident involving the Services, including:

a. any accident, injury or death occurring during, or as a result of, the Services, including in relation to a Client or a member of the public;


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b. any incident which relates to a work, health and safety issue; and

c. any incident that may negatively impact upon Us or bring the Services into disrepute.

Q.1.2 Where an incident referred to in item Q.1.1 is an accident, or involves injury or death, You must also, as soon as possible, and within 24 hours:

a. Notify Our insurance broker as specified in any Guidelines;

b. submit an incident report to Our insurance broker (in the form required by Our insurance broker as specified in any Guidelines) giving full details of the accident, injury or death; and

c. provide a copy of the incident report to the Services Officer.

Q.1.3 You must comply with any instructions issued by Us or Our insurance broker, and any Guidelines, in relation to insurance purchased by Us for Clients.

R. Map of Location


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SECTION 3 – ADDITIONAL TERMS AND CONDITIONS

1. Interpretation

1.1 Interpretation

1.1.1 In this Agreement, unless the contrary intention appears, all capitalised terms have the meaning given to them in the definitions set out in Section 4. All other words have their natural and ordinary meaning.

1.1.2 In this Agreement, unless the contrary intention appears:

b. words importing a gender include any other gender;

c. words in the singular include the plural and vice versa;

d. clause headings are for convenient reference only and have no effect in limiting or extending the language of provisions to which they refer;

e. a reference to a person includes a partnership and a body whether corporate or otherwise;

f. a reference to an entity includes an association of legal persons, however constituted, governed by deed, an incorporated body, an unincorporated association, a partnership and/or a trust;

g. a reference to dollars is a reference to Australian dollars;

h. a reference to any legislation or legislative provision is to that legislation or legislative provision as in force from time to time and includes any statutory modification, substitution, re-enactment, or successor of that legislation or legislative provision;

i. if any word or phrase is given a defined meaning, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;

j. a reference to an item is a reference to an item in a schedule; a reference to a schedule (or an attachment) is a reference to a schedule (or an attachment) to this Agreement, including as amended or replaced from time to time by agreement in writing between the Parties;

k. a reference to writing is a reference to any representation of words, figures or symbols, whether or not in a visible form; and

l. a reference to an internet site or webpage includes those sites or pages as amended from time to time.

1.1.3 This Agreement consists of:

a. Section 1 – Parties to, and Context of, Agreement;

b. Section 2 - Agreement Details and Key Terms & Conditions;

c. Section 3 – Additional Terms and Conditions;

d. Section 4 - Glossary;


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e. any annexure or other attachments; and

f. any document incorporated by reference including, without limitation, any Guidelines and any Conditions of Offer.

1.1.4 In the event of any conflict or inconsistency between any part of:

a. the terms and conditions contained in the clauses of this Agreement;

b. the other Sections of this Agreement;

c. the annexure or other attachments, if any;

d. documents incorporated by reference, if any; and

e. any Guidelines,

then the material in any one of paragraphs a. to c. above has precedence over the material in a subsequent paragraph, to the extent of any conflict or inconsistency.

1.1.5 You agree that:

a. You must perform all Your obligations under this Agreement in accordance with any Guidelines, even if a particular clause does not expressly refer to any Guidelines;

b. We may vary any Guidelines at any time and at Our absolute discretion; and

c. any action, direction, advice or Notice that may be taken or given by Us under this Agreement, may be taken or given from time to time and at Our absolute discretion.

1.2 Construction of Agreement

1.2.1 This Agreement records the entire agreement between the Parties in relation to its subject matter.

1.2.2 As far as possible all provisions of this Agreement will be construed so as not to be void or otherwise unenforceable.

1.2.3 If anything in this Agreement is void or otherwise unenforceable then it will be severed and the rest of the Agreement remains in force.

1.2.4 A provision of this Agreement will not be construed to the disadvantage of a Party solely on the basis that it proposed that provision.

1.3 Term of Agreement

1.3.1 This Agreement commences on the Date of this Agreement and, unless terminated earlier, it expires on the Completion Date.

1.3.2 We may, at Our sole discretion, extend the Term by giving Notice to You not less than 20 Business Days prior to the end of the Completion Date.

1.3.3 If We extend the Term in accordance with clause 1.3.2, the Term will be so extended and all terms and conditions of this Agreement continue to apply, unless otherwise agreed in writing between the Parties.


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2. Funding

2.1 Keeping of Funding

2.1.1 You must:

a. ensure that the Funds are held in an account in Your name, and which You solely control, with a deposit-taking institution authorised under the Banking Act 1959 (Cth) to carry on banking business in Australia;

b. on request from Us, provide Us and the authorised deposit-taking institution with an authority for Us to obtain all details relating to any use of the account.

2.2 Repayments

2.2.1 If, at any time, We determine that:

a. an overpayment by Us has occurred for any reason, including where an invoice is found to have been incorrectly rendered after payment, a payment has been made in error or We determine that You have otherwise been paid an amount that You were not entitled to;

b. there remains an amount of Funding that has not been spent or legally committed for expenditure in accordance with the Agreement to Our satisfaction and the period in which that Funding was expected to be spent or legally committed has passed;

c. Funding has not been spent in accordance with the Agreement; or

d. Funding has not been acquitted to Our satisfaction,

then We may, at Our absolute discretion, recover some or all of the relevant payment from You as a debt in accordance with clause 2.4, including by way of offset, without prejudice to any other rights that We may have under this Deed or the law.

2.3 Double Payment

2.3.1 You warrant that neither You, nor any of Your Related Entities, are entitled to any payment from Us, other Commonwealth sources or state, territory or local government bodies for conducting activities that are the same as, or similar to, the activities that You are required to conduct under this Agreement, and We may require You to provide evidence, in a form acceptable to Us, which proves that You are not so entitled.

2.3.2 If We determine, at Our absolute discretion, that You are entitled to any payment from Us, other Commonwealth sources or state, territory or local government bodies for conducting activities that are the same as, or similar to, the activities that You are required to conduct under this Agreement, We may, at Our absolute discretion:

a. make the relevant payment of Funding;

b. decide not to make the relevant payment of Funding; or

c. recover any relevant payment of Funding made by Us as a debt in accordance with clause 2.4.


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2.3.3 Regardless of any action We may take under clause 2.3.2, We may, at any time, issue Guidelines setting out the circumstances in which We will or will not make payments of Funding in connection with any situation of the type described in clause 2.2.

2.4 Debt and Interest

2.4.1 Any amount owed to Us, or deemed to be a debt to Us under this Agreement, including any Interest, will, without prejudice to any other rights available to Us under this Agreement or the law, be recoverable by Us, at Our absolute discretion, as a debt due to the Commonwealth from You without further proof of the debt being necessary.

2.4.2 Unless otherwise agreed in writing by Us, You must pay to Us any debt due to the Commonwealth from You within 30 calendar days of receipt of a Notice from Us requiring payment.

2.4.3 Unless otherwise agreed in writing by Us, where any debt is owed to the Commonwealth under this Agreement, Interest accrues on that debt if it is not repaid within 30 calendar days of receipt of a Notice from Us requiring payment, until the amount is paid in full.

2.4.4 Without limiting Our rights under this Agreement or the law, if You owe the Commonwealth any debt or have outstanding or unacquitted money, under this Agreement, or under any other arrangement with Us or the Commonwealth, We may offset or deduct an amount equal to that debt owed, or outstanding or unacquitted money, against any Funds due to You under this Agreement.

2.4.5 We will Notify You if We exercise Our rights under clause 2.4.4 within 10 Business Days after having exercised those rights.

2.4.6 Notwithstanding any action taken by Us under clause 2.4.4, You must continue to perform Your obligations under this Agreement, unless We agree otherwise in writing.

2.5 Taxes, duties and government charges

2.5.1 You agree to pay all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this Agreement.

3. Other Contributions

3.1.1 You must Notify Us within 10 Business Days of receiving, or entering into any arrangement under which You are entitled to receive, any additional monetary or in-kind contribution in respect of the Services that are not identified as Other Contributions in the Budget as required in item C.1.5 of Section 2. Any such additional contribution that You receive, or become entitled to receive, after the Date of this Agreement constitutes Other Contributions for the purposes of this Agreement (and the Schedule is deemed to be varied accordingly) on the date on which You are required to Notify Us of that contribution under this clause 3.

3.1.2 You must not charge any Client any fee for conducting the Services in relation to that person.


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4. Records

4.1 Records You must keep

4.1.1 In addition to Your obligations in Section 2, You must create and maintain full and accurate financial and other Records relating to the Services, including:

a. Records relating to:

i. Your progress against the Engagement and Marketing Strategy;

ii. Your progress against the Milestones;

iii. the creation, acquisition and disposal of Assets; and

iv. the creation of Intellectual Property rights in Services Material;

b. to enable all income and expenditure related to the Services and all interest earned on the Funding to be identifiable and ascertainable in Your accounts; and

c. to enable the audit of Your financial Records in accordance with Australian Auditing Standards.

4.1.2 You must retain the Records created under clause 4.1.1 for a period of no less than 7 years after the end of the Services Period.

4.1.3 Notwithstanding this clause 4, if We consider it appropriate, We may, at Our absolute discretion, impose special conditions in relation to Records management, and You must comply with those special conditions as directed by Us.

4.1.4 When requested by Us, You must provide any Records to Us within the timeframe required by Us.

4.2 Financial Accounts and Records

4.2.1 You must keep financial accounts and Records of Your transactions and affairs regarding Funding that You receive from Us under this Agreement:

a. in accordance with Australian Equivalents to International Financial Reporting Standards maintained by the Australian Accounting Standards Board created by section 261 of the Australian Securities and Investments Commission Act 2001 (Cth); and

b. such that:

i. the Funding is clearly and separately identified; and

ii. an auditor or other person may examine them at any time and thereby ascertain Your financial position.

4.3 Access

4.3.1 Subject to clauses 4.7 and 14, You must ensure that copying of, use of, and access to, Agreement Records about a Client, is restricted to Personnel directly assisting You with the conduct of the Services.


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4.4 Transfer

4.4.1 Subject to clause 14.1.2h, You must:

a. not, without the prior written approval of Us, transfer, or be a party to an arrangement for the transfer of, custody of the Records created or maintained under clause 4.1.1, outside of Australia or to any person, entity or organisation other than to Us; and

b. where transferring Records created or maintained under clause 4.1.1, only transfer the Records as directed by Us.

4.5 Access by Clients to Records held by You

4.5.1 Subject to this clause 4.5, You must allow Clients to access Records that contain their own Personal Information, and provide them with copies of such Records if they require, except to the extent that Commonwealth legislation would, if the Records were in the possession of the Commonwealth, require or authorise the refusal of such access by the Commonwealth including Records of the type set out in clause 4.5.3.

4.5.2 You must, in providing access to the requested Records in accordance with clause 4.5.1:

a. ensure that the relevant Client requesting the access in clause 4.5.1 provides proof of identity before access is given to the requested Records; and

b. notate the relevant files with details of the Records to which access was provided, the name of the person granted access and the date and time of such access.

4.5.3 Where a Client requests access to records containing information falling within the following categories:

a. records also containing information about another person;

b. medical/psychiatric records (other than those actually supplied by the Client, or where it is clear that the Client has a copy or has previously sighted a copy of the records);

c. psychological records; and

d. information provided by other third parties,

the request must be directed by You to Us for consideration.

4.5.4 You must comply with any direction given by Us in relation to the provision, or refusal, of access to Records held by You to a Client.

4.6 Access to documents for the purposes of the Freedom of Information Act 1982 (Cth)

4.6.1 In this clause 4.6, ‘document’ has the same meaning as in the Freedom of Information Act 1982 (Cth).

4.6.2 You agree that:

a. where We have received a request for access to a document created by, or in the possession of, You, We may, at any time, by Notice, require You to provide the


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document to Us and You must, at no additional cost to Us, promptly comply with the Notice;

b. You must assist Us in respect of Our obligations under the Freedom of Information Act 1982 (Cth), as required by Us.

4.7 Access to premises and Records

4.7.1 You must at all reasonable times give or arrange for any of Our employees or agents:

a. unfettered access to:

i. Your premises;

ii. Your information technology systems;

iii. all Material, including that relevant to the Funding, determining Your financial viability, and compliance with relevant work, health and safety and industrial relations legislation; and

iv. Your Personnel; and

b. all assistance, as required by Our relevant employee or agent, to:

i. inspect Your premises;

ii. inspect the performance of the Services; and

iii. locate, inspect, copy and remove, all Material including data stored on Your information technology systems.

4.7.2 Subject to clause 4.7.3, the obligations referred to in clause 4.7.1 are subject to the provision of reasonable prior Notice to You and compliance with Your reasonable security procedures.

4.7.3 If:

a. a matter is being investigated that, in Our opinion, may involve:

i. an actual or apprehended breach of the law;

ii. a breach of this Agreement; or

iii. suspected fraud; or

b. We are otherwise conducting Assurance Activities in relation to You,

Clause 4.7.2 does not apply, and Our employees may remove and retain any Material that We determine is relevant to the investigation, including items stored on an electronic medium, provided that We return a copy of all such Material to You within a reasonable period of time.

Note: There are additional rights of access under the Ombudsman Act 1976 (Cth), the Privacy Act 1988 (Cth), and the Auditor-General Act 1997 (Cth).


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5. Security

5.1.1 You must comply with the Commonwealth’s cybersafety policy as described in item P.1 of Section 2, as relevant.

5.1.2 You must promptly report all breaches of IT security to Us , including where Personnel suspect that a breach may have occurred or that a person may be planning to breach IT security and their resolution.

6. Fraud

6.1.1 You must not engage in, and must ensure that Your Personnel and agents do not engage in, fraudulent activity in relation to this Agreement.

6.1.2 You must take all reasonable steps to prevent fraud upon the Commonwealth.

6.1.3 You must Notify Us of any suspected fraudulent activity in relation to this Agreement as soon as You become aware of the suspected fraudulent activity.

6.1.4 If, after investigation, We determine that You have been engaged in fraudulent activity, We may, without limitation to any other rights available to Us:

a. take action under item B of Section 2 or clause 2 of this Section 3; or

b. terminate this Agreement under clause 19 of this Section 3,

by providing Notice to You.

Note: The Criminal Code Act 1995 (Cth) provides that offences involving fraudulent conduct against the Commonwealth are punishable by penalties including imprisonment.

7. Subcontractors

7.1.1 You must not enter into a Subcontract for the performance of any of Your obligations under this Agreement.

7.1.2 If You do not comply with this clause 7, We may:

a. take action under item B of Section 2 or clause 2 of this Section 3; or

b. terminate this Agreement under clause 19 of this Section 3.

8. Specified Personnel

8.1.1 You must ensure that only the Specified Personnel conduct the Services that involve contact with Clients.

8.1.2 If the Specified Personnel are unable to undertake the Services as required under this clause 8, You must notify Us immediately.

8.1.3 You must, at Our request acting in Our absolute discretion, remove any Personnel (including Specified Personnel) from work in relation to the Activities.

8.1.4 If clause 8.1.2 or clause 8.1.3 applies, You must provide replacement Personnel acceptable to Us at no additional cost and at the earliest opportunity.


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8.1.5 If You are unable to provide acceptable replacement Personnel, We may terminate this Agreement under clause 19 of this Section 3.

9. Your responsibility

9.1 Your responsibility

9.1.1 You are fully responsible for the performance of the Services and for ensuring compliance with the requirements of this Agreement, and will not be relieved of that responsibility because of any:

a. involvement by Us in the performance of the Services;

b. acceptance by Us of Specified Personnel; or

c. payment of any amount of Funding to You.

9.2 Checks and reasonable care

9.2.1 Before arranging for any Personnel (including Specified Personnel) to be involved in providing the Services, You must arrange and pay for all checks, and comply with any other conditions, in relation to the person’s involvement in provision of the Services as specified in any relevant legislation, and in particular, any Working with Children Laws, in effect in the jurisdiction(s) in which the Services are conducted.

9.2.2 For the avoidance of doubt, a provision for payment out of the Funding for checks undertaken as required by clause 9.2.1 may be made in the Budget referred to in item C of Section 2.

9.2.3 You must not allow any Personnel (including Specified Personnel) to be involved in undertaking the Services:

a. if any relevant legislation provides or means that the person must not be allowed to be so involved; or

b. if:

i. a relevant check shows that they have been convicted of a crime and a reasonable person would consider that the conviction means that the person would pose a risk to other persons involved in undertaking the Services; or

ii. there is otherwise a reasonably foreseeable risk that the person may cause loss or harm to any other person,

unless You have put in place reasonable measures to remove or substantially reduce that risk.

9.2.4 Before You refer any Client to any person to receive services from another person, You must arrange and pay for all checks, and comply with any other conditions, in relation to the person’s contact with the Client as specified in any relevant legislation, and in particular, any Working with Children Laws, in effect in the jurisdiction(s) in which the contact will occur.

9.2.5 You must not refer any Client to a person to receive services from that person:


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c. if any relevant legislation provides or means that the person must not be allowed to have contact with the Client; or

d. if:

i. a relevant check shows that the person has been convicted of a crime and a reasonable person would consider that the conviction means that the person would pose a risk to the Client; or

ii. there is otherwise a reasonably foreseeable risk that the person may cause loss or harm to any other person,

unless You have put in place reasonable measures to remove or substantially reduce that risk.

10. Assets

10.1 Acquisition of Assets

10.1.1 You must not use the Funding to purchase or create any Asset, apart from those described in item E of Section 2, without obtaining Our prior written approval. Our approval may be subject to any conditions We may impose.

10.1.2 You must ensure that You own any Asset purchased or created with the Funding.

10.2 Your responsibilities for Assets

10.2.1 During the Services Period You must:

a. use any Asset in accordance with this Agreement and for the purposes of the Services;

b. not encumber or dispose of any Asset, or deal with or use any Asset other than in accordance with this clause 10 without Our prior written approval;

c. safeguard all Assets against theft, loss, damage, or unauthorised use;

d. maintain all Assets in good working order;

e. maintain all appropriate insurances for all Assets to their full replacement value, noting Our interest in the Asset under this Agreement, and provide satisfactory evidence of this on request from Us;

f. if required by law, maintain registration and licensing of all Assets;

g. be fully responsible for, and bear all risks relating to, the use or disposal of all Assets;

h. if specified in item E of Section 2, maintain an Assets register in the form and containing the details as described in item E in Section 2; and

i. when requested by Us, provide copies of the Assets register to Us.

10.3 Sale or Disposal of Assets

10.3.1 If You sell or otherwise dispose of an Asset during the Services Period (which must be with Our prior written consent and subject to any conditions We may impose),the greater of the


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following proportions forms part of the Funding and must be used for the Activities or is otherwise recoverable as Funding:

a. the proportion of sale proceeds from the Asset; or

b. the proportion of the Undepreciated value of the Asset,

that is equivalent to the proportion of the cost of the Asset that was funded from the Funding.

10.4 Loss, damage etc. of Assets

10.4.1 If any of the Assets are lost, damaged or destroyed, You must reinstate the Assets including from the proceeds of the insurance and this clause 10 continues to apply to the reinstated Assets. Any surplus from the proceeds of the insurance must be Notified to Us and used and accounted for as Funding under this Agreement.

10.5 Dealing with Assets

10.5.1 On expiry of the Services Period or earlier termination of this Agreement We may require You to deal with Assets as We may, at Our sole discretion, direct in writing.

10.5.2 Subject to clause 10.5.3, if on expiry of the Services Period or earlier termination of the Agreement, an Asset has not been fully Depreciated, We may, by written Notice, require You to:

a. pay to Us within 20 Business Days of the expiry of the Services Period or earlier termination of this Agreement, an amount equal to the proportion of the Undepreciated value of the Asset that is equivalent to the proportion of the cost of the Asset that was funded from the Funding;

b. sell the Asset for the best price reasonably obtainable and pay to Us within 20 Business Days of the sale the proportion of the proceeds of the sale that is equivalent to the proportion of the cost of the Asset (less an amount equal to the reasonable disposal costs incurred by You) that was funded from the Funding; or

c. continue to use the Asset for the purposes, and in accordance with any conditions Notified by Us.

10.5.3 We may in our sole discretion decide that amounts payable to Us under clause 10.5.2 form part of the Funding.

11. Liaison and monitoring

11.1 Liaise and comply

11.1.1 You must:

a. liaise with and provide information to Us, or any other person nominated by Us, as requested by Us;

b. immediately comply with all of Our requests, directions or monitoring and evaluation requirements; and


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c. immediately Notify Us of any matter or incident that could be damaging to Your reputation or Our reputation should it become publicly known.

12. Intellectual Property

12.1 Use of Commonwealth Material

12.1.1 Ownership of all Commonwealth Material, including Intellectual Property rights in that Material, remains vested at all times in Us.

12.1.2 Subject to clause 12.1.5, We grant (or will procure) a royalty-free, non-exclusive licence for You to use, reproduce and adapt the Commonwealth Material for the purposes of this Agreement.

12.1.3 You must use the Commonwealth Material strictly in accordance with any conditions or restrictions set out in item H of Section 2, and any direction from Us.

12.1.4 You must keep the Commonwealth Material safe.

12.1.5 You must not use the Commonwealth Coat of Arms for the purposes of this Agreement.

12.2 Intellectual Property in Services Material

12.2.1 Subject to this clause 12.2, Intellectual Property in all Services Material vests or will immediately vest in You.

12.2.2 Clause 12.2.1 does not affect the ownership of Intellectual Property in:

a. any Commonwealth Material incorporated into Services Material; or

b. any Existing Material.

12.2.3 You grant (or will procure for) Us a permanent, irrevocable, royalty-free, world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce, adapt, modify, perform, distribute, communicate and exploit the Services Material for any Commonwealth purpose.

12.2.4 You grant to Us (or must arrange for the grant to Us of) a permanent, irrevocable, free, worldwide, non-exclusive licence (including a right of sub-licence) to use, reproduce, adapt, modify, perform, distribute, exploit and communicate the Intellectual Property rights in the Existing Material, with the exception of commercial off-the-shelf software, for any Commonwealth purpose.

12.2.5 If You become aware that We will require a licence for commercial off-the-shelf software in order to exercise our rights under the licences granted under this clause 12 You must Notify Us immediately and provide Us with all the necessary details to obtain a licence over such software including the name, version and manufacturer of the software.

12.2.6 You agree that the licence granted in clauses 12.2.3 and 12.2.4 includes a right for Us to licence the Services Material and Existing Material to the public under a CCBY Licence [see http://creativecommons.org/licenses/by/3.0/au/deed.en]. In accordance with the timeframe specified in item A.8 of Section 2 for provision of Services Material, You must provide Us with all author or licensor attribution details in order for Us to comply with the CCBY Licence conditions.


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http://creativecommons.org/licenses/by/3.0/au/deed.en

12.2.7 You must, on Our request, create, sign, execute or otherwise deal with any document necessary or desirable to give effect to this clause 12.2.

12.2.8 You warrant that:

a. You are entitled; or

b. You will be entitled at the relevant time,

to deal with the Intellectual Property in the Services Material in the manner provided for in this clause 12.2.

12.3 Moral Rights

12.3.1 In this clause 12.3:

Permitted Acts means any of the following classes or types of acts or omissions:

a. using, reproducing, adapting or exploiting all or any part of the Activities Material, with or without attribution or authorship;

b. supplementing the Services Material with any other Material;

c. using the Services Material in a different context to that originally envisaged;

d. releasing the Services Material to the public under a CCBY Licence; and

e. the acts or omissions, specifically set out in item Jof Section 2;

but does not include false attribution of authorship.

12.3.2 Where You are a natural person and the author of the Services Material, You consent to the performance of the Permitted Acts by Us or any person claiming under or through Us (whether occurring before or after the consent is given).

12.3.3 Where clause 12.3.2 does not apply, You must obtain from each author of any Services Material a written consent which extends directly or indirectly to the performance of the Permitted Acts by Us or any person claiming under or through Us (whether occurring before or after the consent is given) and, on request, to provide the executed original of any such consent to Us.

12.3.4 This clause 12.3 does not apply to any Commonwealth Material incorporated in the Services Material.

13. Disclosure of Information

13.1 Confidential Information not to be disclosed

13.1.1 Subject to clause 13.3:


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a. You must not, without Our prior written approval, disclose any of Our Confidential Information to a third party; and

b. We must not, without Your prior written approval, disclose any of Your Confidential Information to a third party.

13.1.2 In giving written approval to disclosure, a Party may impose such conditions as it thinks fit, and the other Party agrees to comply with those conditions.

13.2 Written undertakings

13.2.1 We may at any time request You to arrange for any person engaged in, or in relation to, the performance or management of this Agreement (including Personnel) to give a written undertaking in a form acceptable to Us relating to the use and non-disclosure of Our Confidential Information.

13.2.2 If You receive a request under clause 13.2.1, You must promptly arrange for all undertakings to be given.

13.3 Exceptions to obligations

13.3.1 The obligations on the Parties under this clause 13 will not be breached if information:

a. is disclosed by Us to the responsible Minister;

b. is disclosed by Us, in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia;

c. is shared by Us within the Department, or with another Commonwealth entity, where this serves the Commonwealth’s legitimate interests;

d. is authorised or required by law to be disclosed; or

e. is in the public domain otherwise than due to a breach of this clause 13.

13.4 Period of confidentiality

13.4.1 The obligations under this clause 13 continue:

a. in relation to any item of information described in item K of Section 2 - for the period set out in that item;

b. in relation to any information identified in writing after the date of this Agreement as confidential information for the purposes of this Agreement - for the period agreed by the Parties in writing; and

c. in relation to Our information that You know or ought to know by its nature is confidential - until the information is released into the public domain otherwise than by a breach of this Agreement.

13.5 General

13.5.1 You agree to secure all Our Confidential Information against loss and unauthorised access, use, modification or disclosure.


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13.5.2 Nothing in this clause 13 limits Your obligations under clause 4.6 [Access to documents for the purposes of the Freedom of Information Act 1982 (Cth)], clause 4.7 [Access to premises and Records] or clause 14 [Personal Information].

14. Personal Information

14.1 Personal Information

14.1.1 Clauses 14.1.1 to 14.1.3 apply only where You deal with Personal Information for the purpose of conducting the Activities under this Agreement, and the terms ‘agency’, ‘APP Code’, ‘contracted service provider’, ‘organisation’ and ‘sensitive Information’ have the same meaning in this clause as they have in section 6 of the Privacy Act, ‘Australian Privacy Principle’ (APP) has the same meaning in this clause as it has in section 14 of the Privacy Act, and ‘subcontract’ and other grammatical forms of that word have the meaning given in section 95B(4) of the Privacy Act.

14.1.2 You acknowledge that You are a recipient of Funding and agree, in respect of the undertaking of the Services under this Agreement:

a. to use or disclose Personal Information, including sensitive information, obtained in the course of undertaking the Services (‘relevant Personal Information’), only for the purposes of this Agreement or where otherwise permitted under the Privacy Act;

b. except where this clause expressly requires You to comply with an APP that applies only to an organisation, to carry out and discharge the obligations contained in the APPs as if You were an agency;

c. not to do any act or engage in any practice that if done or engaged in by an agency, or where relevant, an organisation, would be a breach of an APP;

d. to notify individuals whose Personal Information You hold, that:

i. complaints about Your acts or practices may be investigated by the Australian Information Commissioner who has power to award compensation against You in appropriate circumstances; and

ii. their Personal Information may be disclosed and passed on to Us and to other persons in relation to undertaking the Services;

e. unless expressly authorised or required under this Agreement, not engage in any act or practice that would breach:

i. APP 7 (direct marketing);

ii. APP 9 (adoption, use or disclosure of government related identifiers); or

iii. any registered APP code that is applicable to the You;

f. to comply with any request under section 95C of the Privacy Act;

g. to comply with any directions, guidelines, determinations, rules or recommendations of the Australian Information Commissioner to the extent that they are consistent with the requirements of this clause 14;


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h. not to transfer relevant Personal Information outside of Australia, or to allow parties outside Australia to have access to it, without Our prior written approval;

i. to Your name being published in reports by the Australian Information Commissioner;

j. if You suspend or terminate Personnel:

i. to remove any access that the Personnel have to any relevant Personal Information;

ii. to require that the Personnel return to You or Us any relevant Personal Information held in the Personnel’s possession; and

iii. to remind the Personnel of their relevant obligations under this Agreement;

k. to ensure that any of Your Personnel who are required to deal with relevant Personal Information:

i. where required by Us, undertake in writing to comply with the APPs (or a registered APP code, where applicable); and

ii. are made aware of their obligations in this clause 14, including to undertake in writing to comply with the APPs (or a registered APP code, where applicable).

14.1.3 You must immediately Notify Us if You become aware:

a. of a breach or possible breach of any of the obligations contained in, or referred to in, this clause 14 by any Personnel;

b. that a disclosure of Personal Information may be required by law; or

c. of an approach to You by the Australian Information Commissioner or by a person claiming that their privacy has been interfered with.

15. Acknowledgement and publicity

15.1 Acknowledgement and promotion

15.1.1 You must, in all publications, and in all promotional, publicity and advertising Materials or activities of any type undertaken by, or on behalf of, You relating to the Services or this Agreement:

a. comply with any promotion and style Guidelines issued by Us from time to time;

b. use badging and signage in accordance with any Guidelines issued by Us from time to time;

c. acknowledge the financial and other support You have received from the Commonwealth, in the manner consistent with any Guidelines issued by Us from time to time and item L of Section 2; and

d. deliver to Us (at Our request and at Your own cost) copies of all promotional, publicity and advertising Materials that You have developed for the purposes of this Agreement.


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15.1.2 You must market and promote the Services, as required by Us, and deal with enquiries relating to Your conduct of the Services, in accordance with any Guidelines.

15.2 Right to publicise Funding

15.2.1 We reserve the right to publicise and report on the awarding of Funding to You, including the amount of the Funds given to You, Your name and the title and a description of the Services.

15.2.2 We reserve the right to publicise and report on the progress of the Services, including any results of Our Assurance Activities.

15.3 No restriction on advocacy

15.3.1 For the avoidance of doubt, except to the extent that You are restricted or prevented from disclosing Our Confidential Information or Personal Information, no right or obligation in this Agreement is to be read or understood as restricting or preventing Your rights to:

a. comment on;

b. advocate support for; or

c. oppose change to,

any matter established by law, policy or practice of the Commonwealth.

16. Liability

16.1 Proportionate liability regimes excluded

16.1.1 To the extent permitted by law, the operation of any legislative proportionate liability regime is excluded in relation to any claim against You under or in connection with this Agreement.

16.2 Indemnity

16.2.1 You indemnify Us from and against any:

a. loss, cost or liability incurred by Us; and

b. loss or expense incurred by Us in dealing with any claim against Us including legal costs and expenses on a solicitor/own client basis and the cost of time spent, resources used or disbursements paid by Us,

arising from or in connection with:

a. any act or omission by You, Your Personnel, or a subcontractor, in connection with this Agreement, where there was fault on the part of the person whose conduct gave rise to that cost, liability, loss, damage, or expense;

b. any breach by You of this Agreement or failure to meet an undertaking given under this Agreement; or


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c. the use by Us of the Services Material or Existing Material, including any claims by third parties about the ownership or right to use the Intellectual Property rights or Moral Rights in the services Material or Existing Material.

16.2.2 Your liability to indemnify Us under clause 16.2.1a will be reduced proportionately to the extent that any act or omission involving fault on the part of Us contributed to the relevant cost, liability, loss, damage or expense.

16.2.3 Our right to be indemnified under this clause 16.2 is in addition to, and not exclusive of, any other right, power or remedy provided by law, but We will not be entitled to be compensated in excess of the amount of the relevant cost, liability, loss, damage or expense.

16.2.4 In this clause 16.2 “fault” means any negligent or unlawful act or omission or wilful misconduct.

17. Dispute resolution

17.1 Procedure for dispute resolution

17.1.1 A dispute arising under this Agreement will be dealt with as follows, and subject to clause 17.4, neither Party will commence legal proceedings in relation to that dispute until this procedure is completed:

a. the Party claiming that there is a dispute will give the other Party a Notice setting out the nature of the dispute;

b. within 5 Business Days (or such other period as agreed by the Parties in writing) each Party will nominate a representative not having any prior involvement in the dispute;

c. the representatives will try to settle the dispute by direct negotiation between them;

d. failing settlement within a further 10 Business Days, or such other period as agreed by the Parties in writing (or failure of one or both Parties to nominate a representative within the period set out in clause 17.1.1b), the Parties may agree to refer the dispute to an independent third person with power:

i. to intervene and direct some form of resolution, in which case the Parties will be bound by that resolution; or

ii. to mediate and recommend some form of non-binding resolution;

e. the Parties will co-operate fully with any process instigated under clause 17.1.1d in order to achieve a speedy resolution; and

f. if the Parties have been unable to agree to refer the dispute to an independent third person, or they have agreed and a resolution is not reached within a further 20 Business Days (or such other period as the parties may agree in writing), either Party may commence legal proceedings.


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17.2 Costs

17.2.1 Each Party must bear its own costs of complying with clause 17.1, and the Parties must bear equally the cost of any third person engaged under clause 17.1.1d.

17.3 Continued performance

17.3.1 Despite the existence of a dispute, You must (unless required in writing by Us not to do so) continue to perform Your obligations under this Agreement.

17.4 Exemption

17.4.1 Clauses 17.1 and 17.2 do not apply:

a. to action by Us under or purportedly under clauses 2, 4, 6, 7, 8, 18, 19, 21 or 22;

b. to action by either Party under or purportedly under clause 18.1;

c. where an agency or authority of the Commonwealth of Australia, a State or Territory is investigating a breach or suspected breach of the law by You; or

d. to legal proceedings by either Party seeking urgent interlocutory relief.

18. Termination or reduction in scope of Activities

18.1 Termination or reduction with costs

18.1.1 We may, at any time by Notice to You, terminate this Agreement, or reduce the scope of any part or all of this Agreement, without prejudice to the rights, liabilities, or obligations of either Party accruing before the date on which the termination or reduction takes effect.

18.1.2 If this Agreement is terminated or reduced in scope under clause 18.1.1, We are only liable for:

a. payment of Funding as set out in clause 18.2; and

b. subject to clauses 18.5, 18.6.1 and 18.6.3, any reasonable, unavoidable costs actually incurred by You and directly attributable to the termination, or a reduction in scope of, this Agreement.

18.2 Payments

18.2.1 Subject to clause 18.3, where We terminate, or reduce the scope of, this Agreement, under clause 18.1:

a. We will only be liable to make payments of Funding which are properly due to You before the date on which the termination or reduction in scope takes effect;

b. any payments of Funding that would have been payments of Funding in advance will abate according to the extent that they relate to the conduct of the Services after the date on which the termination or reduction in scope takes effect; and

c. We will be entitled to recover from You any payments of Funding paid in advance that relate to the conduct of the Services after the date on which the termination or reduction in scope takes effect.


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18.3 Reimbursements

18.3.1 Where We terminate, or reduce the scope of, this Agreement under clause 18.1, We will only be liable to make Reimbursements to the extent that relevant monies have been legally committed by You before receipt of the Notice of termination, or as otherwise commensurate with any reduction in scope of this Agreement.

18.4 Your obligations if You receive a Notice of termination of reduction in scope

18.4.1 Upon receipt of a Notice of termination or reduction in scope under this clause 18, You must:

a. cease or reduce the performance of this Agreement in accordance with the Notice;

b. not legally commit any further monies;

c. immediately return to Us any Funds in accordance with clause 18.2b;

d. immediately do everything possible to mitigate all losses, costs, and expenses, arising from the termination or reduction in scope contained in the Notice; and

e. continue work on any part of the Services not affected by the Notice.

18.5 Abatement of the Funding

18.5.1 If there is a reduction in scope of this Agreement, Our liability to pay any part of the Funding will, unless otherwise agreed, abate proportionately to the reduction in the obligations under this Agreement.

18.6 Limit on compensation

18.6.1 Our liability to pay any compensation under or in relation to this clause 18 is subject to Your:

a. strict compliance with this clause 18; and

b. substantiation of any amounts claimed under clause 18.2.

18.6.2 We will not be liable:

a. to pay compensation for loss of prospective profits attributable to a termination or reduction in scope under this clause 18;

b. for loss of any benefits that would have been conferred on You had a termination or a reduction in scope made under this clause 18 not occurred; or

c. for any amounts that would, in aggregate, exceed the maximum Funds that would have been payable by Us under this Agreement in respect of the Services, but for a termination or a reduction in scope made under this clause 18.

18.6.3 In addition, in relation to a reduction in scope under this clause 18, We will not be liable to pay You, and You agree that Your reasonable costs do not include: a. any amounts owed by You under any contract of employment; and


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b. payment of any liabilities arising from commitments You have made in relation to the conduct of the Services beyond the end of the Financial Year in which the reduction in scope takes place.

18.6.4 If We terminate, or reduces the scope of, this Agreement under this clause 18:

a. Our actions will not constitute a breach of this Agreement; and

b. the Parties agree that the amounts payable to You under this clause 18 represent a reasonable pre-estimate of any loss that may be incurred by You.

19. Termination for default

19.1 Termination for default

19.1.1 We may terminate this Agreement by giving Notice to You if any of the following events or matters arise:a. You fail to fulfil, or are in breach of, any of Your obligations under this Agreement

that are not capable of being rectified (as determined by Us); b. You are in breach of any of Your obligations under this Agreement that are capable of

being rectified, and fail to rectify the breach, or pattern of breaches, within 10 Business Days, or such other period specified by Us, of receiving a Notice from Us to do so;

c. You fail to comply with a statutory demand within the meaning of sections 459E and 459F of the Corporations Act 2001 (Cth);

d. We are otherwise satisfied that You are unable to pay all of Your debts as and when they become due and payable or are presumed to be insolvent, or if You are:

i. a corporation - come under any form of external administration, or receive a notice, or proceedings are commenced, to dissolve You or cancel Your incorporation or registration, or to place You under any form of external administration;

ii. an individual - become bankrupt or enter into an arrangement under Part IX or Part X of the Bankruptcy Act 1966 (Cth);

e. We become aware of any information which indicates that, prior to entering into this Agreement, You have, including in any response to the request for applications for funding for this Agreement: i. engaged in misleading or deceptive conduct; ii. made a statement that is incorrect or incomplete; or iii. omitted to provide information to Us, and iv. We are satisfied that such information may have affected Our decision to enter

into this Agreement or any action taken by Us under this Agreement; f. in relation to this Agreement, You breach any law of the Commonwealth, or of a

State or Territory; g. You cease to carry on a business relevant to the performance of the Services;h. notice is served on You or proceedings are taken to cancel Your incorporation or

cancel Your registration or to dissolve You as a legal entity; or


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Note: For the avoidance of doubt, clause 19.1.1h does not apply where You have transferred Your incorporation or registration in accordance with the legislation under which it is incorporated or registered. b. We become expressly entitled to terminate this Agreement under any other

provision of this Agreement (excluding clause 18) including under any other provision of this Agreement which gives Us the right to terminate under this clause 19.

19.1.2 Where We terminate this agreement under clauses 19.1.1, We:a. will only be liable to pay Funding due and owing to You under the payment

provisions of this Agreement as at the date of Notice of termination; and b. will be entitled to recover from You any part of the Funding which:

i. is not legally committed for expenditure by You in accordance with this Agreement and payable by You by the date that the Notice of termination is received; or

ii. has not, in Our opinion, been spent by You in accordance with this Agreement.19.1.3 Clause 19.1.1 does not limit or exclude any of Our other rights under this Agreement or at

law, including the right to recover any other amounts from You on termination of this Agreement, the right to reduce (including to zero) payments due on termination on the basis of breach or poor performance, or any rights of offset.

20. Notices

20.1 Format, addressing and delivery

20.1.1 A notice under this Agreement is only effective if it is in writing, and dealt with as follows:

a. if given by You to Us- addressed to the Services Officer at the address specified in item M of Section 2 or as otherwise notified by Us; or

b. if given by Us to You - given by the Services Officer (or any superior officer to the Services Officer) and addressed (and marked for attention) as specified in item N of Section 2 or as otherwise notified by You.

20.1.2 A notice is to be:

a. signed by the person giving the notice and delivered by hand; or

b. signed by the person giving the notice and sent by pre-paid post; or

c. transmitted electronically by the person giving the notice by electronic mail or facsimile transmission.

20.2 When received

20.2.1 A notice is taken to have been received:

a. if delivered by hand - upon delivery to the relevant address;

b. if sent by pre-paid post - 5 Business Days after the date of posting to the relevant address; or

c. if transmitted electronically – at the time that would be the time of receipt under the Electronic Transactions Act 1999 if a notice was being given under a law of the Commonwealth.


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20.2.2 A notice received after 5.00 pm, or on a day that is not a Business Day in the place of receipt, is deemed to be received on the next Business Day in that place.

21. Corporate Governance

21.1 Constitution

21.1.1 If You are a body corporate, You warrant that Your constitution is not inconsistent with this Agreement.

21.1.2 You must Notify Us if You intend to amend Your constitution in a way which affects Your ability to comply with this Agreement.

21.1.3 If You amend Your constitution in a way which affects Your ability to comply with this Agreement, We may terminate this Agreement under clause 19.

21.2 Notification

21.2.1 You must Notify Us within 5 Business Days of the occurrence of any of the events specified in clause 19.1.1.

21.3 Management

21.3.1 Unless otherwise agreed by Us in writing at Our sole discretion, You must not employ, engage or elect any person who would have a role in Your management, financial administration or, if Notified by Us the performance of the Services if:

a. the person is an undischarged bankrupt;

b. there is in operation a composition, deed of arrangement or deed of assignment with the person’s creditors under the law relating to bankruptcy;

c. the person has suffered final judgment for a debt and the judgment has not been satisfied; or

d. subject to Part VIIC of the Crimes Act 1914 (Cth), the person has been convicted of any offence within the meaning of paragraph 85ZM(1) of that Act unless:

i. that conviction is regarded as spent under paragraph 85ZM(2) (taking into consideration the application of Division 4 of Part VIIC;

ii. the person was granted a free and absolute pardon because the person was wrongly convicted of the offence; or

iii. the person’s conviction for the offence has been quashed.

22. General provisions

22.1 Insurance

22.1.1 You must:

a. effect and maintain the insurance specified in item O of Section 2; and

b. within 10 Business Days of a request by Us, provide proof of insurance acceptable to Us.


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22.1.2 This clause 22.1 continues in operation for so long as any obligations remain in connection with this Agreement.

22.2 Extension of provisions to Personnel

22.2.1 In this clause 22.2:

Requirement means an obligation, condition, restriction or prohibition binding on You under this Agreement.

22.2.2 You must ensure that:

a. Your Personnel comply with all relevant Requirements; and

b. any contract entered into in connection with this Agreement imposes all relevant Requirements on the other party.

22.2.3 You must exercise any rights You may have against any of Your Personnel or third parties in connection with a Requirement in accordance with any direction by Us.

22.3 Conflict of interest

22.3.1 You warrant that, to the best of Your knowledge and belief after making diligent inquiries, at the Date of this Agreement, no Conflict exists, or is likely to arise, in the performance of Your obligations under this Agreement.

22.3.2 You must not during this Agreement enter into, or engage in, any arrangement, scheme or contract, however described, which may cause a Conflict in the performance of You obligations under this Agreement.

22.3.3 If, during the Term, a Conflict arises, or is likely to arise, including as determined and Notified by Us, You must:

a. immediately Notify Us of the Conflict and the steps that You propose to take to resolve or otherwise deal with the Conflict;

b. make full disclosure to Us of all relevant information relating to the Conflict; and

c. take such steps as We may reasonably require to resolve or otherwise deal with the Conflict.

22.3.4 If You:

a. fail to take action in accordance with this clause 22.3; and/or

b. are unable or unwilling to resolve or deal with the Conflict as reasonably required by Us,

We may terminate this Agreement under clause 19.

22.4 Relationship of Parties

22.4.1 You are not by virtue of this Agreement an officer, employee, partner or agent of Ours, nor do You have any power or authority to bind or represent Us.

22.4.2 You must not:


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a. misrepresent Your relationship with Us; or

b. engage in any misleading or deceptive conduct in relation to the Activities.

22.4.3 You must ensure that Your officers, employees and agents do not represent themselves as being an officer, employee, partner or agent of Ours.

22.5 Waiver

22.5.1 A failure or delay by a Party to exercise any right or remedy it holds under this Agreement or at law does not operate as a waiver of that right.

22.5.2 A single or partial exercise by a Party of any right or remedy it holds under this Agreement or at law does not prevent the Party from exercising the right again or to the extent it has not fully exercised the right.

22.6 Variation

22.6.1 A variation of this Agreement is binding only if agreed in writing and signed by the Parties.

22.7 Assignment and Novation

22.7.1 You cannot assign Your obligations, and must not assign Your rights, under this Agreement without Our prior written approval.

22.7.2 You must not enter into an arrangement that will require novation of Your rights or obligations under this Agreement without Our prior written approval.

22.8 Survival

22.8.1 Unless the contrary intention appears, the expiry or earlier termination of this Agreement will not affect the continued operation of any provision relating to:

a. repayments;

b. licensing of Intellectual Property;

c. confidentiality;

d. security;

e. personal information;

f. Records;

g. audit and access;

h. an indemnity;

i. acknowledgement and publicity;

j. insurance;

k. dispute resolution;

l. access by Clients to Records held by You;

m. liaison and monitoring;


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n. evaluation activities, Assurance Activities and review; and

o. rights or obligations following termination or expiry of the Agreement,

or any other provision which expressly or by implication from its nature is intended to continue.

22.8.2 Clause 4.1.2 of this Agreement survives for seven years from the expiry or earlier termination of this Agreement.

22.9 Compliance with Laws and Our Policies

22.9.1 You must, in carrying out Your obligations under this Agreement, comply with:

a. all relevant laws and requirements of any Commonwealth, state, territory or local authority; and

b. any Commonwealth policies Notified by Us to You in writing, referred to or made available by Us to You (including by reference to an internet site), including those listed in item P of Section 2.

22.9.2 You must, when using Our premises or facilities, comply with all reasonable directions and procedures relating to work health, safety and security in effect at those premises or in regard to those facilities, as advised by Us or as might reasonably be inferred from the use to which the premises or facilities are being put.

22.9.3 Clauses 22.9.3 to 22.9.5 apply only to the extent that You are a ‘relevant employer’ for the purposes of the Workplace Gender Equality Act 2012 (Cth) (‘the WGE Act’).

22.9.4 You must:

a. Notify Us as soon as practicable if You become non-compliant with the WGE Act during the Term; and

b. provide a current letter of compliance issued to You by the Commonwealth Workplace Gender Equality Agency within 18 months from the date of this Agreement.

22.9.5 Compliance with the WGE Act does not relieve You from Your responsibility to comply with Your other obligations under this Agreement.

22.10 Applicable law

22.10.1 This Agreement is to be construed in accordance with, and any matter related to it is to be governed by, the law of the New South Wales.

22.10.2 The Parties submit to the non-exclusive jurisdiction of the courts of the New South Wales.


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SCHEDULE 4 - GLOSSARYAgreement Records

means all Records:

a. developed or created or required to be developed or created as part of or for the purpose of performing this Agreement;

b. incorporated in, supplied or required to be supplied along with the Records referred to in paragraph a. above; or

c. copied or derived from Records referred to in paragraphs a. or b., and

includes all Reports;

Asset means any item of tangible property that is purchased or created either wholly or in part with the use of the Funding but excludes any Intellectual Property rights;

Assurance Activities

refers to activities that may be conducted at any time, to assist Us in determining whether You are meeting Your obligations under the Agreement;

Australian Auditing Standards

refers to the standards made by the Auditing and Assurance Standards Board created by section 227A of the Australian Securities and Investments Commission Act 2001 (Cth);

Australian Equivalents to International Financial Reporting Standards or AEIFRS

refers to the standards of that name maintained by the Australian Accounting Standards Board created by section 261 of the Australian Securities and Investments Commission Act 2001 (Cth);

Budget means the budget referred to in item C of Section 2;

Business Day means in relation to the doing of any action in a place, any day other than a Saturday, Sunday or public holiday in that place;

CCBY Licence means a Creative Commons Attribution 3.0 Australia (http://creativecommons.org/licenses/by/3.0/au/) licence;

Client means a person who You conduct the Services described in item A of Section 2 in relation to;

Commonwealth Coat of Arms

means the Commonwealth Coat of Arms as set out at It’s an Honour – Commonwealth Coat of Arms available at http://www.itsanhonour.gov.au/coat-arms/index.cfm;

Commonwealth means any Material:


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http://www.itsanhonour.gov.au/coat-arms/index.cfm

http://creativecommons.org/licenses/by/3.0/au/

Material a. provided by Us to You for the purposes of this Agreement; or

b. derived at any time from the Material referred to in paragraph a.;

and includes Commonwealth Records, and does not include Activities Material;

Commonwealth Records

means any Records provided by Us to You for the purposes of this Agreement, and includes Records which are copied or derived from Records so provided;

Completion Date means the date specified in item A.1.2 of Section 2;

Conflict refers to a conflict of interest, or risk of a conflict of interest, or an apparent conflict of interest arising through You or Your Personnel engaging in any activity or obtaining any interest that may interfere with or restrict You in conducting the Services fairly and independently;

Corporation has the meaning given to that term in section 57A of the Corporations Act 2001 (Cth);

Department means the Department of Employment and includes any department, agency or authority of the Commonwealth which is from time to time responsible for administering this Agreement;

Depreciated means the amount representing the same reduced value of an Asset as calculated for income tax purposes under, and in accordance with, the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth);

Engagement and Marketing Strategy

means a statement of representations made by You to Us regarding the manner in which You will conduct the Services, including any updates of those representations, approved by Us in accordance with item A.2 of Section 2;

Entrepreneurship means designing, starting and running a business involving:

a. a new business idea or model; or

b. an existing business idea or model;

Entrepreneurship Barrier

means a barrier that can prevent a Client from starting, or continuing to run, their own business, including a lack of access to expert advice (including on how to explore and select sustainable business ideas), finance, office space, equipment and training, and cultural factors;

Existing Material means any Material, except Commonwealth Material, which was in existence before the Date of this Agreement or which is developed independently of this Agreement and which is incorporated in, supplied with or as part of, or required to be supplied with or as part of, the Activities Material and includes, but is not limited to, Material specified in item I of


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Section 2;

Final Report means a Report as specified under item G.4 of Section 2;

Financial Year means a period from 1 July in one year to 30 June in the following year occurring during the Activities Period, or any part of such a period occurring at the beginning or end of the Services Period;

Funds or Funding means the amounts (in cash or kind) payable by Us under this Agreement as specified in item B.1.1 of Section 2 and includes interest earned on the Funding;

Guidelines means any guidelines relating to this Agreement as Notified to You by Us, and as amended by Us from time to time;

Indigenous means a person who:

a. is identified as Aboriginal or Torres Strait Islander by Us; or

b. is of Aboriginal and/or Torres Strait Islander descent; and

c. identifies as an Aboriginal and/or Torres Strait Islander person; and

d. is accepted as such in the community in which the person lives or has lived;

Intellectual Property

includes:

a. all copyright (including rights in relation to phonograms and broadcasts);

b. all rights in relation to inventions (including patent rights), plant varieties, trademarks (including service marks), designs and circuit layouts; and

c. all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields,

but does not include:

d. Moral Rights;

e. the non-proprietary rights of performers; or

f. rights in relation to confidential information;

Interest means interest calculated at a rate determined by Us that will be no higher than the 90 day bank-accepted bill rate (available from the Reserve Bank of Australia) less 10 basis points;

Location means the geographical area identified in the map in item R of Section 2;

Material means equipment, software (including source code and object code), goods,


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and Records stored by any means including all copies and extracts of the same;

Milestone means any Milestone described in item B.2 of Section 2;

Moral Rights means the following non-proprietary rights of authors of copyright Material:

a. the right of attribution of authorship;

b. the right of integrity of authorship; and

c. the right not to have authorship falsely attributed;

Notice means a written notice in accordance with clause 20 and ‘Notify’ has an equivalent meaning;

Notifiable Incident has the meaning given in the WHS Act;

Objectives promote Entrepreneurship and self-employment to young people in identified regions;

encourage young people to develop new business ideas; assist potential young entrepreneurs in accessing assistance to support

and establish their own business; and provide linkages into existing programs, including, the New Enterprise

Incentive Scheme.

Other Contributions

means financial or in-kind resources (with in-kind resources valued at cost), other than the Funding which are to be used by You for the Services;

Our Confidential Information

means Our information that:

a. is described in item K.2 of Section 2;

b. We identify, by Notice in writing to You after the date of this Agreement as confidential information for the purposes of this Agreement; or

c. You know or ought reasonably to know by its nature is confidential;

Party means a party to this Agreement;

Personal Information

has the same meaning as it has in section 6 of the Privacy Act;

Personnel means:

a. in relation to You - any natural person who is an officer, employee, agent or professional advisor of You; and

b. in relation to Us - any natural person, other than a person referred to in paragraph a., who is an officer, employee, agent or professional advisor


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of Us;

Privacy Act means the Privacy Act 1988 (Cth);

Progress Report means a Report as specified under item G.2 of Section 2;

Qualified Accountant

means a person who is a member of the Institute of Chartered Accountants in Australia or of CPA Australia;

Records means documents, information and data stored by any means and all copies and extracts of the same, and includes Agreement Records, Our Records and Your Records;

Reimbursement means any amounts payable by Us under this Agreement as a reimbursement, or such other payments that may from time to time be Notified by Us to be a reimbursement;

Regulator means the person who is the regulator within the meaning of the WHS Act;

Report means Services Material that is provided for reporting purposes under item G of Section 2;

Section 1 means the section of this Agreement entitled “Section 1 – Parties, and Context of, Agreement);

Section 2 means the section of this Agreement entitled “Section 2 – Agreement Details and Key Terms & Conditions”;

Section 3 means the section of this Agreement entitled “Section 3 – Additional Terms and Conditions”;

Section 4 means the section of this Agreement entitled “Section 4 – Glossary”;

Services means the services that You are required to provide as described in item A of Section 2, and includes the provision to Us of the Services Material specified in item A of Section 2;

Services Material means any Material:

a. created for the purposes of this Agreement;

b. provided or required to be provided to Us under the Agreement; or

c. derived at any time from the Material referred to in paragraphs a. or b.;

and includes


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d. any Existing Material incorporated in the Material referred to in paragraphs a. to c.; and

e. any Reports and Agreement Records;

Services Officer means Our nominee who will be Your main contact for this Agreement and whose name or position is specified in item of Section 2 or any substitute Notified to You;

Services Period means the period specified in item A.1.1 of Section 2;

Site means the premises specified in item A.5.2 of Section 2;

Specified Personnel

means the Personnel specified in item A.7 of Section 2, or any of their replacements in accordance with clause 8.1.4 of Section 3;

Target Audience means Youth Clients not in education, employment or training;

Term refers to the period described in clause 1.3 of Section 3;

Undepreciated means the value of an Asset which has not been Depreciated;

WHS Act means the Work Health and Safety Act 2011 (Cth) and any corresponding WHS law within the meaning of section 4 of the WHS Act;

WHS Entry Permit Holder

has the same meaning as that given in the WHS Act;

WHS Laws means the WHS Act, regulations made under the WHS Act, and all relevant state and territory work, health and safety legislation;

Working with Children Laws

means the:

a. Child Protection (Working with Children) Act 2012 (NSW);

b. Working with Children (Risk Management and Screening) Act 2000 (Qld);

c. Working with Children (Criminal Record Checking) Act 2004 (WA);

d. Working with Children Act 2005 (Vic);

e. Children’s Protection Act 1993 (SA);

f. Working with Vulnerable People (Background Checking) Act 2011 (ACT);

g. Care and Protection of Children Act 2007 (NT);

h. Registration to Work with Vulnerable People Act 2013 (TAS); and


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i. any other legislation that provides for the checking and clearance of people who work with children;

Your Confidential Information

means Your information that:

a. is described in item K.1 of Section 2;

b. You identify, by Notice in writing to Us after the Date of this Agreement and that We agree to treat as confidential information for the purposes of this Agreement; or

c. that We know, or ought reasonably to know by its nature is confidential;

Youth Client means a Client who, at the time of Your first contact with them, is between 18 and 24 years of age (inclusive) and who is a resident of the Location.


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This Agreement is made on………………………….of………………………………...2016

Signatures

SIGNED for and on behalf of the Commonwealth of Australia as represented by the Department of Employment by:

Name of signatory Signature

In the presence of:

Name of witness Signature of witness

SIGNED for and on behalf of [Insert] by:

Name of director Signature of director

In the presence of:

Name of director/company secretarySignature of director/company secretary


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dewr template long form contract for services web viewparties. this agreement is made between and...

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