DRAFT FUNDING AGREEMENT

IN RELATION TO THE EMPOWERING YOUTH INITIATIVES ROUND 1 2016-2018

Commonwealth of Australia represented by the Department of Employment

ABN 54 201 218 474

^Party 2 Name^

^Party 2 ABN^ ^Party 2 ACN^

Contents

1. Interpretation 51.1 Definitions 51.2 Interpretation 141.3 Construction of Agreement 151.4 Term of Agreement 15

2 Initiative 162.1 Your principal obligations 16

3 Funding 163.1 Payment 163.2 Use of Funding 163.3 Budget 173.4 Keeping of Funding 173.5 Repayments 173.6 Double Payment 183.7 Debt and Interest 183.8 Taxes, duties and government charges 19

4 Other Contributions 194.1 Other Contributions 19

5 Records 195.1 Records You must keep 195.2 Financial Accounts and Records 195.3 Storage 205.4 Recording 205.5 Access 205.6 Transfer 205.7 Retention 205.8 Destruction 205.9 Access by Participants to Records held by You 215.10 Access to documents for the purposes of the Freedom of Information Act 1982 (Cth) 215.11 Access to premises and Records 225.12 Record of Participants’ attendance 23

6 Information Technology 236.1 Third Party IT Providers 236.2 Security 23

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7 Fraud 23

8 Subcontractors 24

9 Personnel 25

10 Your responsibility 2510.1 Your responsibility 2510.2 Checks and reasonable care 25

11 Assets 2611.1 Acquisition of Assets 2611.2 Your responsibilities for Assets 2711.3 Sale or Disposal of Assets 2711.4 Loss, damage etc. of Assets 2711.5 Dealing with Assets 27

12 Liaison and monitoring 2812.1 Liaise and comply 2812.2 Information, monitoring and Initiative reporting 28

13 Evaluation activities 28

14 Initiative Assurance Activities and review 29

15 Reporting 29

16 Intellectual Property 3016.1 Use of Commonwealth Material 3016.2 Intellectual Property in Initiative Material 3116.3 Moral Rights 31

17. Disclosure of Information 3217.1 Confidential Information not to be disclosed 3217.2 Written undertakings 3217.3 Exceptions to obligations 3317.4 Period of confidentiality 3317.5 General 33

18. Personal and Protected Information 3318.1 Personal Information 3318.2 Protected Information 35

19. Acknowledgement and publicity 3519.1 Acknowledgement and promotion 3519.2 Right to publicise Funding 36

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19.3 No restriction on advocacy 36

20. Liability 3620.1 Proportionate liability regimes excluded 3620.2 Indemnity 3620.3 Joint and several liability 37

21. Dispute resolution 3721.1 Procedure for dispute resolution 3721.2 Costs 3821.3 Continued Performance 3821.4 Exemption 38

22. Termination or reduction in scope of Initiative 3822.1 Termination or reduction with costs 3822.2 Payments 3822.3 Reimbursements 3922.4 Your obligations 3922.5 Abatement of funding 3922.6 Limit on compensation 39

. Termination for default 410

23.1 Termination for default 42123.2 Preservation of other rights 41

24. Notices 4124.1 Format, addressing and delivery 4124.2 When received 42

25. Special rules about Consortiums 42

26. Corporate Governance 4226.1 Constitution 4226.2 Notification 4226.3 Management 4326.4 Change in Control of You or a Subcontractor 43

27. General provisions 4427.1 Insurance 4427.2 Extension of provisions to Subcontractors and Personnel 4427.3 Conflict of interest 4427.4 Relationship of Parties 4527.5 Waiver 4527.6 Variation 45

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27.7 Assignment and Novation 4527.8 Survival 4627.9 Compliance with Laws and Our Policies 4627.10 Applicable law 47

Schedule 1 48

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AGREEMENT

Parties

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 funding recipient legal Name^ ^Insert funding recipient ABN and ACN/ARBN if applicable^ ^Insert funding recipient Address^ (‘You’, or ‘Your’)

Context

A. We administer the Empowering YOUth Initiatives which aims to:

a) help more young people at risk of long-term unemployment to find and keep a job;

b) identify innovative approaches that have the greatest potential to improve employment outcomes for young people at risk of long-term unemployment and prevent long-term welfare dependency; and

c) promote learnings from the Empowering YOUth Initiatives to assist government and organisations working with young people to enhance current and future service delivery.

B. You are committed to helping achieve the Objectives of the Empowering YOUth Initiatives through Your conduct of the Initiative.

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

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

OPERATIVE PROVISIONS

1. Interpretation

1.1 Definitions

1.1.1 In this Agreement, unless the context indicates otherwise:

Agreement means this document, as varied or extended by the Parties from time to time in accordance with this Agreement, and includes the schedules, annexures, if any, and documents incorporated by reference;

Agreement 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

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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, which has a value of over $1,000 inclusive of GST and is purchased or created either wholly or in part with the use of the Funding but excludes any Intellectual Property rights;

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 set out in item C of Schedule 1;

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;

Change in Control means:

a. subject to paragraph b. below, in relation to a Corporation, a change in any of the following:

(i) Control of more than one half of the voting rights attaching to shares in the Corporation, whether due to one or a series of transactions occurring together or on different occasions;

(ii) Control of more than one half of the issued share capital of the Corporation, whether due to one or a series of transactions occurring together or on different occasions, excluding any part of the issued share capital which carries no right to participate beyond receipt of an amount in the distribution of either profit or capital; or

(iii) Control of more than one half of the voting rights attaching to membership of the Corporation, where the Corporation does not have any shareholders;

b. in relation to a Corporation which is owned or controlled by a trustee company, any change as set out in paragraph a. above in

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relation to either that Corporation or its corporate trustee;

c. in relation to a partnership:

(i) the sale or winding up or dissolution of the business by the partners;

(ii) a change in any of the partners; or

(iii) the retirement, death, removal or resignation of any of the partners;

d. in relation to an Exempt Public Authority, a change in relation to any of the following:

(i) the composition of the board of Directors;

(ii) ownership of any shareholding in any share capital; or

(iii) the enabling legislation so far as it affects Control, if any;

e. in relation to a Consortium:

(i) any change in the membership of the Consortium;

(ii) a change of the lead member of the Consortium, if the Consortium has appointed a lead member for the purposes of this Agreement; or

(iii) a Change in Control as defined in paragraphs a. to .d. above in any member of the Consortium;

Child means a person under the age of 18 years, and ‘Children’ has a corresponding meaning;

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 Material

means any 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 Initiative Material;

Commonwealth Records

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

Community Development Programme Provider

means any entity contracted by the Department of the Prime Minister and Cabinet to provide services under the Community Development Programme;

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Competent Person means a person who has acquired through training, qualification or experience the knowledge and skills to carry out specific work health and safety tasks, and as otherwise specified in any guidelines;

Completion Date means the date specified in item A.3.2 of Schedule 1;

Condition of Offer means a condition placed by the Department on Our offer of this Agreement to You;

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

Consortium means a group of two or more entities, however constituted, other than a partnership, which have entered into an arrangement for the purposes of jointly delivering the Initiative, and which may have appointed a lead member of the group with authority to act on behalf of all members of the group for the purposes of this Agreement, as specified in item A of Schedule 2;

Control has the meaning given to that term in section 50AA of the Corporations Act 2001 (Cth);

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

Cybersafety Policy means the Commonwealth policy of that name as specified at item Q.2 of Schedule 1;

Date of this Agreement means the date written at the top of the signature page of this Agreement, and if no date or more than one date is written there, then the date on which this Agreement is signed by the last Party to do so;

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;

Department Employee means an employee of the Commonwealth working for Us and:

a. any person notified by Us to You as being a Department Employee; and

b. any person authorised by law to undertake acts on behalf of Us;

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

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Act 1997 (Cth);

Director means any of the following:

a. a person appointed to the position of a director or alternate director, and acting in that capacity, of a body corporate within the meaning of the Corporations Act 2001 (Cth) regardless of the name given to their position;

b. a member of the governing committee of an Aboriginal and Torres Strait Islander corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);

c. a member of the committee of an organisation incorporated pursuant to state or territory laws relating to the incorporation of associations;

d. a person who would be a director of the body corporate under paragraph (a) above if the body corporate were a body corporate within the meaning of the Corporations Act 2001 (Cth);

e. a person who acts in the position of a director of a body corporate;

f. a person whose instructions or wishes the directors of a body corporate are accustomed to acting upon, and not simply because of the person’s professional capacity or business relationship with the directors or the body corporate; and

g. a member of the board, committee or group of persons (however described) that is responsible for managing or overseeing the affairs of the body corporate;

Disability Employment Services Provider

means an entity contracted by the Department of Social Services to provide disability employment services;

Employment Services Provider

means a jobactive Provider, Transition to Work Provider, Community Development Programme Provider and a Disability Employment Services Provider;

Empowering YOUth Initiatives

means the initiative of that name which is administered by the Department;

Exempt Public Authority

has the meaning given to that term in section 9 of the Corporations Act 2001 (Cth);

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 Initiative Material and includes, but is not limited to, Material specified in item J of Schedule 1;

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

Funds or Funding means the amounts (in cash or kind) payable by Us under this Agreement as specified in item B of Schedule 1 and includes interest earned on the Funding;

Grant Guidelines means the Grant Guidelines for Empowering YOUth Initiatives Round 1;

Initiative means the Initiative described in item A of Schedule 1 and includes the provision to Us of the Initiative Material specified in item A of Schedule 1;

Initiative 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;

Initiative 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

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

e. any Reports and Agreement Records;

Initiative Officer means the person specified (by name or position) in item D of Schedule 1 or any substitute notified to You;

Initiative Period means the period specified in item Schedule 1.A.3 of Schedule 1 during which the Initiative must be completed;

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,

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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 the Department that will be no higher than the 90 day bank-accepted bill rate (available from the Reserve Bank of Australia) less 10 basis points;

jobactive Provider means any entity contracted by the Commonwealth to provide jobactive services under the jobactive Deed 2015-2020;

Material means equipment, software (including source code and object code), goods, and Records stored by any means including all copies and extracts of the same;

Milestone means a stage of completion of the Initiative as set out in item A of Schedule 1;

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 24 and ‘Notify’ has an equivalent meaning;

Notifiable Incident has the meaning given in the WHS Act;

Objectives means the objectives described in item A of Schedule 1;

Other Contributions means financial or in-kind resources (with in-kind resources valued at cost), other than the Funding, which are specified at item C of Schedule 1 and are to be used by You for the Initiative;

Our Confidential Information

means Our information that:

a. is described in item L of Schedule 1;

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;

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Our Security Policies means policies relating to the use and security of Our IT systems and Records, and includes Our policy by the name of External Security Policy - For Contracted Service Providers and Users and any other security policies Notified by Us from time to time;

Participant means a person between 15 and 24 years of age (inclusive) who has been unemployed for 12 months or more, or is at risk of being long-term unemployed and who meets the eligibility requirements set out in item A of Schedule 1;

Participant Records means Agreement Records about a Participant, that are directly created for the purposes of conducting the Initiative;

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 or Your Subcontractors; 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 of Us;

Privacy Act means the Privacy Act 1988 (Cth);

Protected Information has the same meaning as under section 23 of the Social Security Act 1991;

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;

Records Management Instructions

means any guidelines provided by Us from time to time in relation to the management, retention and disposal of 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;

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Report means Initiative Material that is provided for reporting purposes under clause 15 and as stipulated in item H of Schedule 1;

Security Contact means one or more Personnel with responsibility:

(a) for ensuring the Provider’s compliance with the Our Security Policies;

(b) to use the online identity and access management tool to manage system access; and

(c) to communicate with the Department in relation to IT security related matters;

Subcontract means any arrangement entered into by You by which some or all of the obligations under this Agreement are performed by another entity;

Subcontractor means any party which has entered into a Subcontract with You;

Term refers to the period described in clause 1.4;

Third Party IT Provider means an entity contracted by You to provide information technology services to You for the purposes of conducting the Initiative, whether or not the entity is a Subcontractor, and includes a third-party hosting entity and an outsourced information technology service provider;

Transition to Work Provider

means any entity contracted by the Commonwealth to provide Transition to Work services under the Transition to Work Deed 2016-2020;

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);

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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

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 L of Schedule 1;

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.

1.2 Interpretation

1.2.1 In this Agreement, unless the contrary intention appears, all capitalised terms have the meaning given to them in the definitions at clause 1.1. All other words have their natural and ordinary meaning.

1.2.2 In this Agreement, unless the contrary intention appears:

a. words importing a gender include any other gender;

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

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

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

e. 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;

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

g. 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;

h. 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;

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i. 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;

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

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

1.2.3 This Agreement consists of:

a. this document;

b. any schedules;

c. any annexure or other attachments; and

d. any document incorporated by reference.

1.2.4 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 schedules;

c. the annexure or other attachments, if any; and

d. documents incorporated by reference, if any,

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.

1.2.5 You agree that Conditions of Offer form part of this Deed.

1.3 Construction of Agreement

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

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

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

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

1.4 Term of Agreement

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

1.4.2 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.

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1.4.3 If We extend the Term in accordance with clause 1.4.2, 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.

2 Initiative

2.1 Your principal obligations

2.1.1 You must carry out the Initiative:

a. as specified in item A of Schedule 1;

b. to achieve the Objectives;

c. within the Initiative Period;

d. in accordance with this Agreement; and

e. diligently, effectively and to a high standard.

2.1.2 You must not, and You must ensure that Your Personnel and Subcontractors do not, act in a way that may bring the Initiative into disrepute.

2.1.3 If specified at item R of Schedule 1, You must comply with the work health and safety requirements specified in that item.

3 Funding

3.1 Payment

3.1.1 Subject to sufficient funds being available for the Empowering YOUth Initiatives, and compliance by You with this Agreement (including the requirements specified in item B of Schedule 1) to Our satisfaction, We will provide You with the Funding at the times and in the manner specified in item B of Schedule 1.

3.1.2 Without limiting Our rights, We may withhold or suspend any payment in whole or in part until You have performed Your obligations under this Agreement.

3.1.3 We may reduce the amount of Funding payable under this Agreement where You:

a. owe money to Us; or

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

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

3.1.4 If We exercise Our rights under clauses 3.1.2, 3.1.3 or, where relevant, 3.5, You must continue to perform any obligations under this Agreement, unless We agree otherwise in writing.

3.2 Use of Funding

3.2.1 The Funding must be expended by You only for the Initiative.

3.2.2 You must do all things necessary to ensure that all payments from the Funding that You make to third parties (including Subcontractors) are correctly made and properly

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authorised and that You maintain proper and diligent control over the incurring of all liabilities.

3.2.3 You must not use the Funds, the Agreement or any of Our obligations under the Agreement, the Assets or Intellectual Property rights in Initiative 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.

3.3 Budget

3.3.1 You must only spend the Funding in accordance with the Budget and the conditions specified in item C of Schedule 1.

3.3.2 You must obtain prior written approval from Us for any changes to the Budget.

3.4 Keeping of Funding

3.4.1 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. if specified in item B of Schedule 1, ensure the account is:

i. established solely to account for and administer, Funding provided by Us to You under this Agreement; and

ii. separate from Your other operational accounts; and

c. 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.

3.5 Repayments

3.5.1 If, at any time, We determine that:

a. an overpayment 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 3.7, including by way of offset.

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3.6 Double Payment

3.6.1 You warrant that You are not entitled to payment of funding from Us, other Commonwealth sources or state, territory or local government bodies for conducting the same or similar activities as 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.

3.6.2 If We determine, at Our absolute discretion, that You are entitled to payment of funding from Us, other Commonwealth sources or state, territory or local government bodies for conducting same or similar activities provided for under this Agreement, We may, at Our absolute and unfettered 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 3.7.

3.6.3 Regardless of any action We may take under clause 3.6.2, 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 3.6.2.

3.7 Debt and Interest

3.7.1 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.

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

3.7.3 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.

3.7.4 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.

3.7.5 We will Notify You if We exercise Our rights under clause 3.7.4 within 10 Business Days after having exercised those rights.

3.7.6 Notwithstanding any action taken by Us under clause 3.7.4, You must continue to perform Your obligations under this Agreement, unless We agree otherwise in writing.

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3.8 Taxes, duties and government charges

3.8.1 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.

4 Other Contributions

4.1 Other Contributions

4.1.1 The Other Contributions that have been identified by You are set out in item C.2 of Schedule 1 of this Agreement.

4.1.2 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 contributions in respect of the Initiative that are not identified as Other Contributions in item C.2 of Schedule 1. Any such additional contribution that You become entitled to receive after the Date of this Agreement constitutes Other Contributions for the purposes of this Deed (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 4.1.2.

5 Records

5.1 Records You must keep

5.1.1 You must create and maintain true, complete and accurate Records of the conduct of the Initiative, in accordance with the Records Management Instructions.

5.1.2 Notwithstanding this clause 5, 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.

5.1.3 When requested by Us, You must provide the Records, including relevant Records maintained by a Third Party IT Provider, to Us within the timeframe required by Us.

5.1.4 You must ensure that Records held in any Third Party System relating to the Initiative can be, and are, provided on request, to Us in an unadulterated form i.e. with no amendment to the Records.

5.2 Financial Accounts and Records

5.2.1 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. all Funding made by Us is clearly and separately identified; and

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

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5.3 Storage

5.3.1 You must store all Records created or maintained under clause 5.1.1, in accordance with the Records Management Instructions and Our Security Policies, and where relevant, Your Privacy Act obligations.

5.4 Recording

5.4.1 You must maintain an up to date list of the Records held by You, as specified in the Records Management Instructions, and make this list available to Us on request.

5.5 Access

5.5.1 Subject to clauses 18 and 5.11 You must ensure that copying of, use of, and access to, Participant Records, is restricted to Personnel directly assisting You with the conduct of the Initiative, any Subcontractor or any Third Party IT Provider.

5.6 Transfer

5.6.1 Subject to clause 18.1.2.h, 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 5.1.1, outside of Australia or to any person, entity or organisation other than to Us; and

b. where transferring Records created or maintained under clause 5.1.1, only transfer the Records in accordance with the Records Management Instructions or as otherwise directed by Us.

5.7 Retention

5.7.1 Subject to clause 18, all Records created or maintained under clause 5.1.1 must be retained by You for a period of no less than seven years after the creation of the Record, unless otherwise specified in the Records Management Instructions or advised by Us.

5.7.2 At the Completion Date, You must manage all Records created or maintained under clause 5.1.1 in accordance with the Records Management Instructions or as otherwise directed by Us.

5.8 Destruction

5.8.1 You must:

a. not destroy or otherwise dispose of Records created or maintained under clause 5.1.1, except in accordance with the relevant Records Management Instructions, or as otherwise directed by Us; and

b. provide a list to Us of any Records that have been destroyed, as directed by Us.

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5.9 Access by Participants to Records held by You

5.9.1 Subject to this clause 5.9, You must allow Participants 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 5.9.3.

5.9.2 You must, in providing access to the requested Records in accordance with clause 5.9.1:

a. ensure that the relevant Participant requesting the access in clause 5.9.1 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.

5.9.3 Where a Participant 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 Participant, or where it is clear that the Participant 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.

5.9.4 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 Participant.

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

5.10.1 In this clause 5.10, ‘document’ has the same meaning as in the Freedom of Information Act 1982 (Cth).

5.10.2 You agree that:

a. where We have received a request for access to a document created by, or in the possession of, You, any Subcontractor or any Third Party IT Provider, We may, at any time, by Notice, require You to provide the 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; and

c. You must include in any Subcontract, or contract with a Third Party IT Provider, provisions that will enable You to comply with Your obligations under this clause 5.10.

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5.11 Access to premises and Records

5.11.1 You must at all reasonable times give or arrange for any Department Employee:

a. unfettered access to:

i. Your premises and those of any Subcontractor or Third Party IT Provider;

ii. Your information technology systems and those of any Third Party IT Provider;

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 Subcontractors and Third Party IT Providers; and

b. all assistance, as required by the relevant Department Employee, to:

i. inspect Your premises and those of any Subcontractor or Third Party IT Provider;

ii. inspect the performance of the Initiative; and

iii. locate, inspect, copy and remove, all Material including data stored on the Your information technology systems or those of any Subcontractor or Third Party IT Provider.

5.11.2 Subject to clause 5.11.3, the obligations referred to in clause 5.11.1 are subject to the provision of reasonable prior notice to You and compliance with Your reasonable security procedures.

5.11.3 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 Initiative Assurance Activities in relation to You,

clause 5.11.2 does not apply, and Department 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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5.12 Record of Participants’ attendance

5.12.1 You must record each Participant’s attendance in the Initiative and provide these records in accordance with item G of Schedule 1.

6 Information Technology

6.1 Third Party IT Providers

6.1.1 You must:

a. not give access to electronic Records, or any derivative thereof, to a Third Party IT Provider who has not entered into a Third Party IT Provider Deed with Us, and only grant such access in accordance with the terms of the relevant Third Party IT Provider Deed;

b. in any contract with a Third Party IT Provider:

i. provide that the Third Party IT Provider may only subcontract its obligations under that contract to another Third Party IT Provider who has entered into a Third Party IT Provider Deed with the Department; and

ii. reserve a right of termination to take account of Our right of termination in the relevant Third Party IT Provider Deed; and

c. on receipt of any advice from Us that We have terminated a relevant Third Party IT Provider Deed, terminate Your contract with the Third Party IT Provider and, at Your own cost, promptly cease using the Third Party IT Provider.

6.2 Security

6.2.1 You must comply, and ensure that Your Subcontractors and Third Party IT Providers comply, with Our Security Policies and the Commonwealth’s Cybersafety Policy, as relevant.

6.2.2 You must ensure that a Security Contact is appointed at all times during the Term of this Deed, and that, at all times, We have up to date contact details for the current Security Contact.

6.2.3 You must (through Your Security Contact) 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.

7 Fraud

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

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

7.1.3 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.

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

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a. take action under clause 3; or

b. terminate this Agreement under clause 23,

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.

8 Subcontractors

8.1 Subcontractors

8.1.1 You must not, without Our prior written approval:

a. enter into a Subcontract for the performance of any of Your obligations under this Agreement;

b. terminate a Subcontractor who has been approved by Us; or

c. replace an approved Subcontractor with another Subcontractor.

8.1.2 In giving approval under clause 8.1.18.1, We may impose such terms and conditions as We think fit and You must comply with any such terms and conditions.

8.1.3 The Subcontractors that We have approved at the Date of this Agreement, and any terms and conditions relating to their use, are identified in item E of Schedule 1.

8.1.4 You must not Subcontract any of Your obligations under this Agreement to an Employment Services Provider.

8.1.5 You must ensure that any arrangement You enter into with a Subcontractor is in writing.

8.1.6 You are liable to Us for all losses caused under, or in connection with, this Agreement by the acts or omissions of any Subcontractor whether or not the relevant entity is a current Subcontractor.

8.1.7 You must ensure that every Subcontractor is aware of all terms and conditions of this Agreement relevant to the Subcontractor’s part in the Initiative.

8.1.8 You must pay Your Subcontractors in accordance with the terms of the relevant Subcontract.

8.1.9 We may revoke Our approval of a Subcontractor on any reasonable ground by giving Notice to You, and, on receipt of the Notice, You must, at Your own cost, promptly cease using that Subcontractor and arrange for its replacement by Personnel or another Subcontractor acceptable to, and approved by, Us.

8.1.10 You must, in any Subcontract:

a. reserve a right of termination to take account of Our right of termination under clauses 22 and 23 and Our right of revocation of approval of a Subcontractor under clause 8.1.9, and You must, where appropriate, make use of that right in the

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Subcontract in the event of a termination, or revocation of approval of the Subcontractor, by Us; and

b. bind the Subcontractor, with respect to Us, to all relevant terms and conditions of this Agreement including clauses 5, 17, 18, 27.1, 27.4 and 27.9.

8.1.11 You must not enter into a Subcontract under this Agreement with a Subcontractor named by the Director of the Workplace Gender Equality Agency as an employer currently not complying with the Workplace Gender Equality Act 2012 (Cth).

8.1.12 We may publically disclose the names of any Subcontractors engaged to perform any of Your obligations under this Agreement.

8.1.13 You must inform all Subcontractors that their participation in performing any of Your obligations under this Agreement may be publically disclosed.

8.1.14 If You do not comply with this clause 8.1, We may:

a. take action under clause 3; or

b. terminate this Agreement under clause 23.

9 Personnel

9.1.1 You must, at Our request acting in Our absolute discretion, remove Personnel from work in relation to the Initiative.

9.1.2 If clause 9.1.1 applies, You must provide replacement Personnel acceptable to Us at no additional cost and at the earliest opportunity.

9.1.3 If You are unable to provide acceptable replacement Personnel, We may terminate this Agreement under clause 23.

10 Your responsibility

10.1 Your responsibility

10.1.1 You are fully responsible for the performance of the Initiative 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 Initiative;

b. Subcontracting of the Initiative; or

c. payment of any amount of Funding to You.

10.2 Checks and reasonable care

10.2.1 Before arranging for any Personnel to be involved in the Initiative, You must arrange and pay for all checks, and comply with any other conditions in relation to the person’s Initiative involvement, as specified in any relevant legislation, and in particular, any Working with Children Laws, in effect in the jurisdiction(s) in which the Initiative is conducted.

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10.2.2 You must not allow any Personnel to be involved in the Initiative:

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

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 the Initiative; or

ii. Initiative 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.

Participants

10.2.3 If the Initiative or employment involves close proximity with people who are elderly, disabled, or otherwise vulnerable or Children (excluding other Participants), before arranging for a Participant to be involved in the Initiative or placed into employment, You must arrange and pay for all checks in relation to a Participant’s involvement in the Initiative or placement into employment as specified in any relevant legislation, and in particular, any Working with Children Laws, in effect in the jurisdiction(s) in which the Initiative is conducted or the employment exists.

10.2.4 You must not allow a Participant to be involved in an Initiative or place a Participant into employment:

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

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 the Initiative or employment; or

ii. there is otherwise a reasonably foreseeable risk that the person may cause loss or harm to other persons involved in the Initiative or employment,

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

Note: Where You place a Participant into employment, ‘reasonable measures’ may include, if relevant and consistent with any requirements under the law, advising the employer of any information that may be relevant to assisting the employer to mitigate relevant risks.

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11 Assets

11.1 Acquisition of Assets

11.1.1 You must not use the Funding to acquire or create any Asset, apart from those detailed in item F of Schedule 1, without obtaining Our prior written approval. Our approval may be subject to any conditions We may impose.

11.1.2 Unless it is specified in item F of Schedule 1 that We own the Asset then You must ensure that You own any Asset acquired or created with the Funding. If We own the Asset, clauses 11.3, 11.5.2 and 11.5.3 do not apply.

11.2 Your responsibilities for Assets

11.2.1 During the Initiative Period You must:

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

b. not encumber or dispose of any Asset, or deal with or use any Asset other than in accordance with this clause 11 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 F of Schedule 1, maintain an Assets register in the form and containing the details as described in item F in Schedule 1; and

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

11.3 Sale or Disposal of Assets

11.3.1 If You sell or otherwise dispose of an Asset during the Initiative Period (which must be with Our prior written consent and subject to any conditions We may impose),the greater of the following proportions forms part of the Funding and must be used for the Initiative 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.

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11.4 Loss, damage etc. of Assets

11.4.1 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 11 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.

11.5 Dealing with Assets

11.5.1 On expiry of the Initiative 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.

11.5.2 Subject to clause 11.5.3, if on expiry of the Initiative 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 Initiative 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.

11.5.3 We may in our sole discretion decide that amounts payable to Us under clause 11.5.2 form part of the Funding.

12 Liaison and monitoring

12.1 Liaise and comply

12.1.1 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 requirements; and

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

12.2 Information, monitoring and Initiative reporting

12.2.1 You must provide Us with the information set out in item G of Schedule 1.

12.2.2 Prior to obtaining the information set out in item G of Schedule 1 from a Participant, You must obtain the written consent of the Participant and inform the Participant how the information will be used.

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12.2.3 You must provide Us with Reports in relation to the Initiative at the times and in the manner specified in item H of Schedule 1.

13 Evaluation activities

13.1.1 You agree that:

a. evaluation activities may be undertaken by Us for the purposes of evaluating the Initiative, including Your performance, and may include, but are not limited to:

i. Us monitoring, measuring and evaluating the delivery of the Initiative by You;

ii. Your Personnel or Subcontractors 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 5.11.; and

b. You will fully cooperate with Us in relation to all such activities.

14 Initiative Assurance Activities and review

14.1.1 Throughout the Term, We may conduct Initiative 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.

14.1.2 You must:

a. provide all reasonable assistance required by Us;

b. respond to all Our reasonable requests; and

c. provide any information We reasonably require,

in relation to the monitoring of the Initiative.

15 Reporting

15.1.1 You must provide Us with Reports in relation to the Initiative at the times and in the manner specified in item H of Schedule 1.

15.1.2 Unless clause 15.1.4 applies, within 20 Business Days (or other period specified in item H of Schedule 1 or as otherwise notified) of the end of the Initiative 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 3.4.1; and

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

15.1.3 The audits referred to in clause 15.1.2 must:

a. comply with the Australian Auditing Standards;

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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); and

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.

15.1.4 If You are audited by the Auditor-General or a State or Territory Auditor-General:

a. for the Term; and

b. the Funding is included in the income and expenditure which is subject to the audit,

then instead of the audits referred to in clause 15.1.2, You may provide Us with:

i. a detailed statement of income and expenditure for 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 3.4.1; and

ii. a statement that the Funding was expended for the Initiative and in accordance with this Agreement.

15.1.5 The financial statements referred to in clauses 15.1.4(i) and (ii) must:

a. contain the details, if any, described in item H of Schedule 1;

b. be certified by Your chief executive officer and the senior executive officer employed by You who has primary responsibility for managing Your audit function; and

c. be provided to Us within 20 Business Days (or other period specified in item H of Schedule 1 or as otherwise notified) of the end of the Initiative Period.

15.1.6 If You are a Consortium or a partnership, then You must provide one copy of the consolidated audits referred to in clause 15.1.2 for the Consortium or partnership, if available, and individual audits for each member of the Consortium.

16 Intellectual Property

16.1 Use of Commonwealth Material

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

16.1.2 Subject to clause 16.1.5, We grant (or will procure) a royalty-free, non-exclusive licence for You to use, copy, and reproduce the Commonwealth Material for the purposes of this Agreement.

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16.1.3 You must use the Commonwealth Material strictly in accordance with any conditions or restrictions set out in item I of Schedule 1, and any direction from Us.

16.1.4 You must keep the Commonwealth Material safe.

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

16.2 Intellectual Property in Initiative Material

16.2.1 Subject to this clause 16.2, Intellectual Property in all Initiative Material vests or will immediately vest in You.

16.2.2 Clause 16.2.1 does not affect the ownership of Intellectual Property in:

a. any Commonwealth Material incorporated into Initiative Material; or

b. any Existing Material.

16.2.3 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 Initiative Material for any Commonwealth purpose.

16.2.4 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, and communicate the Intellectual Property rights in the Existing Material, with the exception of commercial off-the-shelf software, for any Commonwealth purpose.

16.2.5 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 16 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.

16.2.6 You agree that the licence granted in clauses 16.2.3 and 16.2.4 includes a right for Us to licence the Initiative 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 of Schedule 1 for conduct of the Initiative, You must provide Us with all author or licensor attribution details in order for Us to comply with the CCBY Licence conditions.

16.2.7 You must, on Our request, create, sign, execute or otherwise deal with any document necessary or desirable to give effect to this clause 16.2.

16.2.8 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 Initiative Material in the manner provided for in this clause 16.2.

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16.2.9 If requested by Us, You must provide to Us a copy of the Initiative Material in the form requested by Us.

16.3 Moral Rights

16.3.1 In this clause 16.3:

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 Initiative Material, with or without attribution or authorship;

b. supplementing the Initiative Material with any other Material;

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

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

e. the acts or omissions, specifically set out in item K of Schedule 1;

but does not include false attribution of authorship.

16.3.2 Where You are a natural person and the author of the Initiative 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).

16.3.3 Where clause 16.3.2 does not apply, You must obtain from each author of any Initiative 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.

16.3.4 This clause 16.3 does not apply to any Commonwealth Material incorporated in the Initiative Material.

17. Disclosure of Information

17.1 Confidential Information not to be disclosed

17.1.1 Subject to clause 17.3:

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.

17.1.2 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.

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17.2 Written undertakings

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

17.2.2 If You receive a request under clause 17.2 You must promptly arrange for all undertakings to be given.

17.3 Exceptions to obligations

17.3.1 The obligations on the Parties under this clause 17 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 17.

17.4 Period of confidentiality

17.4.1 The obligations under this clause 17 continue:

a. in relation to an item of information described in item L of Schedule 1 - 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.

17.5 General

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

17.5.2 Nothing in this clause 17 limits Your obligations under clause 5.10 [Access to documents for the purposes of the Freedom of Information Act 1982 (Cth)], clause 5.11 [Access to premises and Records] or clause 18 [Personal and Protected Information].

18. Personal and Protected Information

18.1 Personal Information

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18.1.1 Clauses 18.1.1 to 18.1.3 apply only where You deal with Personal Information for the purpose of conducting the Initiative 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.

18.1.2 You acknowledge that You are a recipient of Funding and agree, in respect of the conduct of the Initiative under this Agreement:

a. to use or disclose Personal Information, including Sensitive Information, obtained in the course of conducting the Initiative (‘relevant Personal Information’), only for the purposes of this Agreement;

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 Initiative;

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 18;

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:

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

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

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 18, including to undertake in writing to comply with the APPs (or a registered APP code, where applicable).

18.1.3 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 18 by any Personnel or Subcontractor;

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.

18.2 Protected Information

18.2.1 You must ensure that when handling Protected Information, You comply with the requirements under Division 3 [Confidentiality] of Part 5 of the Social Security (Administration) Act 1999 (Cth).

19. Acknowledgement and publicity

19.1 Acknowledgement and promotion

19.1.1 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 Initiative 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

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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19.1.2 You must market and promote the Initiative, as required by Us, and deal with enquiries relating to Your conduct of the Initiative, in accordance with any guidelines issued by Us from time to time.

19.2 Right to publicise Funding

19.2.1 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 Initiative.

19.3 No restriction on advocacy

19.3.1 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.

20. Liability

20.1 Proportionate liability regimes excluded

20.1.1 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.

20.2 Indemnity

20.2.1 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:

c. any act or omission by You, Your Personnel, or a Subcontractor (whether or not the relevant entity is a current 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;

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

e. the use by Us of the Initiative 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 Initiative Material or Existing Material.

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20.2.2 Your liability to indemnify Us under clause 20.2.1a 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.

20.2.3 Our right to be indemnified under this clause 20.2 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.

20.2.4 In this clause 20.2 “fault” means any negligent or unlawful act or omission or wilful misconduct.

20.3 Joint and several liability

20.3.1 To the extent permitted by law, where:

a. more than one party is a signatory to this Agreement – each of those Parties;

b. You are a partnership – each partner; or

c. You are a Consortium – each member of the Consortium;

is jointly and severally liable for:

d. the performance of all of Your obligations under this Agreement; and

e. all losses caused by any Subcontractor engaged for the purpose of this Agreement.

21. Dispute resolution

21.1 Procedure for dispute resolution

21.1.1 A dispute arising under this Agreement will be dealt with as follows, and subject to clause 21.4, 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 21.1.1b), 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 21.1.1d in order to achieve a speedy resolution; and

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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.

21.2 Costs

21.2.1 Each Party must bear its own costs of complying with clause 21.1, and the Parties must bear equally the cost of any third person engaged under clause 21.1.1d.

21.3 Continued performance

21.3.1 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.

21.4 Exemption

21.4.1 Clauses 21.1 and 21.2 do not apply:

a. to action by Us under or purportedly under clauses 3, 5, 6.2, 7, 8, 9, 22, 23, 25, or 26;

b. to action by either Party under or purportedly under clause 22.1;

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.

22. Termination or reduction in scope of Initiative

22.1 Termination or reduction with costs

22.1.1 We may, at any time by Notice to You, terminate this Agreement in whole or in part, 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.

22.1.2 If this Agreement is terminated in whole or part or reduced in scope under this clause 22.1.1, We are only liable for:

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

b. subject to clauses 22.5, 22.6.1, 22.6.2 and 22.6.3, any reasonable, unavoidable costs actually incurred by You and directly attributable to the termination, in whole or in part, or a reduction in scope of this Agreement.

22.2 Payments

22.2.1 Subject to clause 22.3, where We terminate this Agreement in whole or in part or reduce the scope of this Agreement, under clause 22.1:

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;

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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 Initiative 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 Initiative after the date on which the termination or reduction in scope takes effect.

22.3 Reimbursements

22.3.1 Where We terminate this Agreement in whole or in part, or reduces the scope of this Agreement, under clause 22.1, 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 any part, or all of this Agreement.

22.4 Your obligations

22.4.1 Upon receipt of a Notice of termination or reduction in scope under this clause 22, 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 22.2b;

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 Initiative not affected by the Notice.

22.5 Abatement of the Funding

22.5.1 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.

22.6 Limit on compensation

22.6.1 Our liability to pay any compensation under or in relation to this clause 22 is subject to Your:

a. strict compliance with this clause 22; and

b. substantiation of any amounts claimed under clause 22.2.

22.6.2 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 22;

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 22 not occurred; or

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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 Initiative, but for a termination or a reduction in scope made under this clause 22.

22.6.3 In addition, in relation to a reduction in scope under this clause 22, 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 or to any of Your

Subcontractors; and

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

22.6.4 If We terminate, or reduces the scope of, this Agreement under this clause 22:

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 22 represent a reasonable pre-estimate of any loss that may be incurred by You.

23. Termination for default

23.1 Termination for default

23.1.1 We may terminate this Agreement in whole or in part, 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 it 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

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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 Project;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 Note: For the avoidance of doubt, clause 23.1.1h does not apply where You have transferred Your incorporation or registration in accordance with the legislation under which it is incorporated or registered. i. We become expressly entitled to terminate this Agreement under any other

provision of this Agreement (excluding clause 22) including under any other provision of this Agreement which gives Us the right to terminate under this clause 23.

23.1.2 Subject to clause 23.1.3, where We terminate this Agreement in whole or in part under clause 23.1.1: a. We are liable to pay Funding and entitled to recover payments of Funding as set out

in clause 22.2; and b. clauses 22.3 and 22.4 apply as if this Agreement were terminated in accordance with

clause 22.1. 23.1.3 Clause 23.1.1 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.

23.2 Preservation of other rights

23.2.1 Clause 23 does not limit or exclude any of Our other rights under this Agreement.

24. Notices

24.1 Format, addressing and delivery

24.1.1 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 Initiative Officer at the address specified in item N of Schedule 1 or as otherwise notified by Us; or

b. if given by Us to You - given by the Initiative Officer (or any superior officer to the Initiative Officer) and addressed (and marked for attention) as specified in item O of Schedule 1 or as otherwise notified by You.

24.1.2 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.

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24.2 When received

24.2.1 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.

24.2.2 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.

25. Special rules about Consortiums

25.1.1 If You are a Consortium, You:

a. agree that Your members are as specified at item A of Schedule 2;

b. warrant that each of Your members are legal entities and have given their authority to the member named in this Agreement as the Consortium’s lead member to negotiate, bind and act on that member’s behalf in relation to this Agreement and any variations thereto; and

c. must not change Your membership without Us agreeing in writing, and You complying with any direction from Us in relation to the change.

26. Corporate Governance

26.1 Constitution

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

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

26.1.3 If You amend Your constitution in a way which affects Your ability to comply with this Agreement, We may terminate this Agreement under clause 23.

26.2 Notification

26.2.1 You must notify Us within 5 Business Days of the occurrence of any of the events specified in clause 23.1.1.

26.3 Management

26.3.1 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 Initiative if:

a. the person is an undischarged bankrupt;

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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.

26.4 Change in Control of You or a Subcontractor

26.4.1 You must not cause or permit to occur a Change in Control of You or any Subcontractor where, as a result of the Change in Control:

a. You would have been excluded from applying for Funding under section 4.1 of the Grant Guidelines; or

b. You would have been excluded from Subcontracting any of Your obligations under this Agreement to that Subcontractor.

26.4.2 You must notify Us of a Change in Control of You or any Subcontractor, as specified in clause 26.4.1, within five Business Days of:

a. a Change in Control of You; or

b. You becoming aware of a Change in Control of a Subcontractor.

26.4.3 You must, within five Business Days of receiving a written request from Us, provide such information and supporting evidence as We may request in relation to the:

a. shareholdings;

b. issued shares;

c. board of Directors;

d. board of management;

e. executive;

f. voting rights;

g. partnership composition, if relevant; or

h. Consortium membership, if relevant,

of Your organisation or any Subcontractor, including the dates of any changes to those matters.

26.4.4 If You:

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a. do not Notify Us in accordance with clause 26.4.2;

b. cause or permit to occur a Change in Control which results in the circumstances set out in clauses 26.4.1a or 26.4.1b; or

c. do not provide Us with any information required by Us in accordance with clause 26.4.3,

We may terminate this Agreement under clause 23.

27. General provisions

27.1 Insurance

27.1.1 You must:

a. effect and maintain the insurance specified in item P of Schedule 1; and

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

27.1.2 This clause 27.1 continues in operation for so long as any obligations remain in connection with this Agreement.

27.2 Extension of provisions to Subcontractors and Personnel

27.2.1 In this clause 27.2:

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

27.2.2 You must ensure that:

a. Your Subcontractors and 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.

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

27.3 Conflict of interest

27.3.1 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.

27.3.2 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.

27.3.3 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;

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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.

27.3.4 If You:

a. fail to take action in accordance with this clause 27.3; 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 23.

27.4 Relationship of Parties

27.4.1 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.

27.4.2 You must not:

a. misrepresent Your relationship with Us; or

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

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

27.5 Waiver

27.5.1 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.

27.5.2 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.

27.6 Variation

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

27.7 Assignment and Novation

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

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

27.8 Survival

27.8.1 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;

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c. confidentiality;

d. security;

e. personal and protected information;

f. Records;

g. audit and access;

h. an indemnity;

i. acknowledgement and publicity;

j. insurance;

k. dispute resolution;

l. Information Technology;

m. access by Participants to Records held by You;

n. liaison and monitoring;

o. evaluation activities, Initiative and Assurance Activities and review; and

p. 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.

27.8.2 Clause 5.11 of this Agreement survives for seven years from the expiry or earlier termination of this Agreement.

27.9 Compliance with Laws and Our Policies

27.9.1 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, including the WHS Laws, Working with Children Laws, the Workplace Gender Equality Act 2012 (Cth), the Racial Discrimination Act 1975 (Cth), the Disability Discrimination Act 1992 (Cth), the Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission Act (1986); 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 Q of Schedule 1.

27.9.2 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.

Workplace Gender Equality Act 2012 (Cth)

27.9.3 Clauses 27.9.3 to 27.9.5 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’).

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27.9.4 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.

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

27.10 Applicable law

27.10.1 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.

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

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SCHEDULE 1 AGREEMENT DETAILS

A. Initiative (see clause 2.1.1a)

A.1. Objectives of the Empowering YOUth Initiatives

A.1.1. The objectives for the Empowering YOUth Initiatives are to:

a. help more young people at risk of long-term unemployment to find and a keep a job;b. identify innovative approaches that have the greatest potential to improve

employment outcomes for young people at risk of long-term unemployment and prevent long-term welfare dependency; and

c. promote learnings from the Empowering YOUth Initiatives to assist government and organisations working with young people to enhance current and future service delivery.

A.2. Initiative

A.2.1. The Initiative consists of the following activities and milestones.

A.2.2. You must:

a. ^insert detailed description of Initiative including any applicable Milestones^

A.2.3. The Milestones for the Initiative are:

Milestone Date

Milestone 1: …

Milestone 2: …

Milestone 3: …

A.2.4. Initiative Material: ^if the details of the Initiative Material required and timeframes for its provision have not already been included in the Initiative description and Milestones above then include those details here^

A.2.5. If requested by Us, You must provide a copy of any Initiative Material to Us in the form specified by Us.

A.3. Initiative Period

A.3.1. The Initiative Period commences on the Date of this Agreement and ends on ^insert date which provides sufficient time for completion of the Milestones and Reports you need to receive within the Initiative Period (excluding the financial statements and audit required under clause 15.1.2 which are due after the conclusion of the Initiative Period)^.

Completion Date

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A.3.2. The Completion Date is ^insert date which provides sufficient time for completion of the financial statements and audit required under clause 15.1.2 which are due 20 Business Days from the end of the Initiative Period)^.

B. Funding and Payment (see clause 3)

B.1. FUNDING

B.1.1. The total Funding for the Initiative is $^insert amount^ GST inclusive. The Funding will be paid as follows:

Payment number and type Timing for payment GST inclusive amount

1. Initial payment Date of this Agreement $^insert amount^

2. Progress payment Completion of Milestone X $^insert amount^

3. Progress payment Completion of Milestone X $^insert amount^

4. Final payment Completion of Milestones X and X (including provisionof Progress Reports X and X)

$^insert amount^

B.1.2. Each payment of Funds is subject to:

(a) You having completed the part of the Initiative (including any Milestone) that is a condition of the payment to Our satisfaction;

(b) Whether We have exercised Our rights under clause 3.5.1 of the Agreement;

(c) You having provided all Reports that were due on or 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.2. INVOICES

B.2.1. 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;

(d) the date of issue of the invoice;

(e) the title of this agreement/the Initiative and the agreement number (if any) or date of execution;

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(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.2.2. 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 3.5.1 of this Agreement.

B.2.3. All invoices must be addressed to the Initiative Officer.

B.3. PAYMENT

B.3.1 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.3.2 Payment will be effected by electronic funds transfer (EFT) to Your following bank account ^insert details^

B.4. BANK ACCOUNT

B.4.1 You are required to comply with clause 3.4.1.b and establish a separate bank account for the Funds.

C. Budget (see clause 3.3)

C.1 Budget

Expenditure item Funding Total Cost

GST inclusive

Administration outlays

Initiative specific outlays

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Total expenditure of Funding (including administration outlays and Initiative specific outlays) on a per Participant basis (GST inclusive):

C.2 Other Contributions (clause 4)

C.2.1 The Other Contributions for the Initiative are specified in the following table.

^[If there are Other Contributions complete this section – see example below. ‘Other Contributions’ includes all financial and in-kind contributions that are provided for the Activity]^

^[If there are no ‘Other Contributions’ – state ‘Not Applicable’ in item C.2.1 and delete table]^

Table – Other Contributions ^[Example only - amend as necessary]^

C.3 Budget flexibility

C.3.1 You may transfer Funding between categories of expenditure items within the Budget subject to the following limitations:

(a) You must seek 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. Initiative Officer (see clause 1.1)

D.1 The Initiative Officer is the person for the time-being holding, occupying or performing the duties of ^insert position^, currently ^insert name^, available on telephone number ^insert number^ or via the address and facsimile number set out in item N of Schedule 1.

E. Subcontractors (see clause 8.1.3)

^[OPTION 1: IF SUBCONTRACTORS ARE APPROVED]^:

E.1 You may Subcontract the performance of parts of the Initiative as follows:

Part of the Initiative being Subcontracted

Subcontractor Additional conditions

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^insert details^ ^insert details^ ^See Instructions for examples of what should be included and then insert requirements^

^[OPTION 2: IF NO SUBCONTRACTORS ARE APPROVED]^:

Not Applicable

F. Assets (see clause 11)

F.1 Approved Assets

^list any Assets approved at the Date of this Agreement and any conditions for the acquisition of those Assets^

F.2 Ownership

^if Assets are to be owned by the Commonwealth insert the following:

Assets are owned by Us.

F.3 Asset Register

^if an Asset register is required insert the following:^

You must maintain an Asset register in the following form and containing the following information:

Asset number

Description of Asset

Creation or acquisition cost

Date of creation or acquisition

Term of any relevant arrangement

Location of Asset

Method of, and date, which Asset was written off or disposed of

G. Information, Monitoring and Record of Attendance (see clauses 5.12 and 12.2)

G.1 You must provide Us with the following information, as relevant at the time of reporting, in relation to each Participant and do so within 10 Business Days of their commencement in the Initiative, and thereafter on a ^[insert period]^ basis:

a. full name;

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b. gender;

c. date of birth;

d. residential address;

e. contact details (eg phone number and/or email address);

f. whether the Participant is Indigenous or non-Indigenous;

g. country of birth;

h. main language other than English at home (if applicable);

i. marital status;

j. how many children they care for and their dates of birth (if applicable);

k. highest level of education attained;

l. any educational activity that they are currently undertaking;

m. current employment (if applicable);

n. previous employment history;

o. any barriers to employment;

p. date the Participant commenced in the Initiative;

q. date Participant exited the Initiative (if applicable);

r. reason for Participant exiting the Initiative (if applicable);

s. Participant outcomes as agreed with Us; and

t. any additional information as required and notified by Us.

G.2 Record of Attendance

^Detail of what type of information needs to be recorded, how it will be recorded and who it will be provided to, will be inserted by Us depending on the specific Initiative^

H. Reporting (see clause 15)

H.1 Alternative time for provision of audits (clause 15.1.2)

^Clause 15.1.2 specifies within 20 Business Days of the end of the Initiative Period – if that is not appropriate, insert alternative period or date. If 20 Business Days is appropriate, insert ‘Not applicable’^

H.2 Details to be contained in statements (clause 15.1.5a)

The statements referred to in clause 15.1.4 must contain the following details:

^Insert the details of any information etc. you want included in the statements mentioned in clause 15.1.5a. If nothing is to be described here, insert ‘Not applicable’ ^

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H.3 Alternative time for provision of statements (clause 15.1.5c)

^Clause 15.1.5c specifies within 20 Business Days of the end of the Initiative Period – if that is not appropriate, insert alternative period or date. If 20 Business Days is appropriate, insert ‘Not applicable’^

H.4 Reports to be provided (clause 15.1.1)

[EXAMPLE ONLY (see Instructions for further information and suggestions)]:

H.5 Progress Reports

H.5.1 You must provide Us with progress Reports as follows:

^insert timeframes for provision of progress Reports e.g. as part of certain Milestones^

^insert detail of what information needs to be provided in the progress Reports and the time period for which the Report is to apply^

H.6 Final Report

H.6.1 You must provide Us with a final Report as follows:

^insert timeframes for provision of final Reports^

^insert detail of what information needs to be provided in the final Reports and the time period for which the Report is to apply^

H.7 Other Reports

H.7.1 You must provide ad hoc reports in relation to the Initiative as notified by Us.

I. Commonwealth Material (see clause 16.1)

^ [OPTION 1: IF CONDITIONS OR RESTRICTIONS APPLY]^:

I.1 The following conditions and restrictions apply to the use of Commonwealth Material by You:

Description of Commonwealth Material

Conditions or Restrictions on Use

^Restrictions may arise as a result of third party rights to Intellectual Property, or because of confidentiality, privacy, archival or other restrictions. ^

^[OPTION 2: IF THERE ARE NO CONDITIONS OR RESTRICTIONS]^:

Not applicable

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J. Existing Material (see clauses 1.1 & 16.2.2)

^[OPTION 1: IF EXISTING MATERIAL IS KNOWN, SPECIFY HERE]^:

J.1 The following Material is Existing Material for the purpose of this Agreement:

^[OPTION 2: IF THERE IS NO KNOWN EXISTING MATERIAL]^:

Not applicable

K. Moral Rights (see clause 16.3)

K.1 Permitted Acts

^[OPTION 1: IF ADDITIONAL PERMITTED ACTS , SPECIFY HERE]^:

K.1.1 In addition to those set out in clause 16.3.1, the following are ‘Permitted Acts’ for the purposes of clause 16.3.1e:

EXAMPLE ONLY:

use of the Initiative Material for advertising, merchandising or promotional purposes of any kind;

incorporating the Initiative Material into a website or as part of a multi-media training programme;

synchronising the proposed sound recording as part of the soundtrack of a film; or

removal and/or relocation of the proposed sculpture to an alternative location, including disassembly as necessary for that purpose.

^[OPTION 2: IF THERE ARE NO ADDITIONAL PERMITTED ACTS]^:

Not applicable

L. Confidential Information (see clause 17.1)

L.1 Your Confidential Information:

(a) Information contained in Agreement:

Item Period of Confidentiality

^insert relevant items^ ^insert relevant time period^

(b) Information obtained or generated in performing Agreement:

Item Period of Confidentiality

^insert relevant items^ ^insert relevant time period ^

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L.2 Our Confidential Information:

(a) Information contained in Agreement:

Item Period of Confidentiality

^insert relevant items^ ^insert relevant time period ^

(b) Information obtained or generated in performing Agreement:

Item Period of Confidentiality

^insert relevant items^ ^insert relevant time period ^

M. Acknowledgement and Publicity (see clause 19)

M.1 Manner of acknowledgement:

^insert the manner of acknowledgement or insert ‘N/A’ if no manner to be specified^

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

^insert the requirements^

N. Our Address for Notices (see clause 24.1.1a)

Physical address ^insert details^

Postal address ^insert details^

Email ^insert details^

Facsimile ^insert details^

O. Your Address for Notices (see clause 24.1.1b)

Physical address ^insert details^

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Postal address ^insert details^

Email ^insert details^

Facsimile ^insert details^

P. Insurance (see clause 27.1)

P.1 Required insurance:

P.1.1 You must maintain:

(a) workers’ compensation as required by law;

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

(c) ^ list any other insurance policies which You must maintain ^.

Q. Compliance with Laws and Policies (see clause 27.9)

Q.1 Compliance with policies

Q.1.1 You must:

(a) when using Our premises or facilities (including information systems), comply with Our directions and procedures relating to environmental management, work health, safety and security (which you acknowledge may change during the Term); and

(b) ensure that any person who will have access to official secrets within the meaning of section 79 of the Crimes Act 1914 (Cth) sign an acknowledgment that he or she is aware of the provisions of that section.

Q.2 Cybersafety

^ If the Initiative involves a recipient using computers and/or other digital technology, the following items must be included. If not, they may be omitted.

Q.2.1 For the purposes of this item Q.2:

‘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 adult 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.

Q.2.2 The Commonwealth’s Cybersafety Policy is that where an organisation is funded by the Commonwealth to carry out the Initiative using computers and/or other digital technology, the safety of Clients when using those computers and/or other digital technology must be

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assured.

Q.2.3 You must take Reasonable Steps to protect Your Clients’ cybersafety.

Q.2.4 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.

Q.2.5 You agree to include Your obligations in relation to this Cybersafety Policy in all Subcontracts You enter into in relation to the Initiative.

Q.3 Web Accessibility

^Additional clauses may be required if Initiative involves the provision of any form of online services, products, functionality and/or content (including documents intended for online distribution) on behalf of the government.^

Q.4 Compliance with WHS Laws

Q.4.1 You must at all times:

a. ensure that the Initiative is carried out in a safe manner;

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 Initiative (including meeting with Us as required by Us and communicating any issues or concerns, or any specific requirements applying to the Initiative 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 Initiative:

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:

i. any suspected contravention of the WHS Laws relating to the Initiative;

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

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

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iv. any cessation or direction to cease work relating to the Initiative, 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.

Q.4.2 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 Initiative.

R. Work Health and Safety (see clause 2.1.3)

^[OPTIONAL ITEM R TO BE INSERTED BELOW AT THE DEPARTMENT’S DISCRETION BASED ON THE NATURE OF THE PARTICULAR INITIATIVE]^:

R.1.1 At the commencement of a Participant’s involvement in the Initiative and throughout the Initiative, You must in accordance with any guidelines, satisfy Yourself that there is a safe system of work in place, including that You are complying with work health and safety requirements relevant to the jurisdiction in which the Initiative occurs.

R.1.2 You must, in accordance with any guidelines:

a. undertake a risk assessment prior to the commencement of the Initiative and each Participant in the Initiative; and

b. retain Records of each risk assessment referred to in item R.1.2a and any action taken in accordance with the risk assessment, and provide the relevant Records to Us upon request.

R.1.3 If:

a. there are any required actions identified in the risk assessment, You must ensure that all such actions are undertaken;

b. there have been any significant changes in relation to the Initiative, including work, health and safety issues, since the date of the relevant risk assessment, You must review and revise the relevant risk assessment and take all appropriate action, or ensure that all appropriate action is taken, to address any such changes,

before commencing a Participant in the Initiative, and at all relevant times thereafter.

R.1.4 If You do not employ a Competent Person relevant to meeting the obligations at items R.1.1, R.1.2 and R.1.3, You must engage a relevant Competent Person, as required, for this purpose.

R.1.5 Prior to the commencement of a Participant in the Initiative, and at all times during the Intitiative, You must, in accordance with any guidelines:

a. examine the relevant risk assessment to ensure that the Initiative is appropriate for the Participant, with regard to their health and safety, taking into consideration any relevant circumstances and work restrictions;

b. ensure that any required actions, identified in the relevant risk assessment, have been undertaken;

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c. identify any training, including work health and safety training, that will be required to ensure that the Participant can participate in the Initiative safely, and ensure that training of sufficient length and quality is provided to all Participants at the commencement and for the duration of the Initiative;

d. ensure that appropriate facilities (such as toilets and access to drinking water) will be available to all Participants for the duration of the Initiative;

e. identify if any specific equipment, clothing or materials are required for Participants to participate safely in the relevant activities, and ensure that such materials will be provided to Participants;

f. ensure that the Participant has been advised of the process for reporting any work health and safety issues regarding the Initiative; and

g. purchase or fund additional insurance for the Initiative, if required.

Incidents

R.1.6 You must Notify Us as soon as possible, and within 24 hours, of any incident involving the Initiative, including:

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

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 Initiative into disrepute.

R.1.7 Where an incident referred to in item R.1.6 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 Initiative Officer.

R.1.8 You must comply with any instructions issued by Us or Our insurance broker, and any guidelines, in relation to insurance purchased by Us for Participants.

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SCHEDULE 2 CONSORTIUM MEMBERS

A. Consortium Members (see clauses 1.1 and 25)

Name Address ABN

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This Agreement is made on [^LEAVE BLANK – TO BE COMPLETED WHEN THE COMMONWEALTH (OR LAST PARTY) SIGNS^]

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

NOTE: Choose the appropriate signature block for the funding recipient from the alternatives below and delete the others.

Where funding recipient is an individual/sole trader use the following:

SIGNED by:

^Party 2 Name^ Signature

in the presence of:

Name of witness Signature of witness

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Where funding recipient is a company use the following:

SIGNED for and on behalf of (^insert company name^) (^insert company ACN or ABN^) in accordance with the requirements of section 127 of the Corporations Act 2001 (Cth) by:

Name of Director Signature

In the presence of:

Name of witness Signature of witness

and by

Name of Director/Secretary Signature

In the presence of:

Name of witness Signature of witness

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Where funding recipient is a partnership use the following:

SIGNED by:

Name of partner Signature

who by signing warrants that they have authority to bind (^insert name of each co-partner(s) of partnership)

In the presence of:

Name of witness Signature of witness

Where funding recipient is an incorporated association use the following:

SIGNED for and on behalf of (^insert Association name) (^insert ABN) by:

Name of Committee member Signature

In the presence of:

Name of witness Signature of witness

NOTE The date of signing should not be included within the execution clauses. The Date of the Agreement is the date the last Party signs the Agreement entered at the beginning of the execution pages, read in conjunction with clause 1.4.1.

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