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DRAFTING INSTRUCTIONS LONG FORM FUNDING AGREEMENT

CLAUSE INSTRUCTION

CoverPage RecipientName AgreementTitle

Insertthe: fullregisteredbusinessnameoftheRecipient; RecipientsAustralianBusinessNumberorAustralianCompany Number;and titleoftheAgreement. IftheRecipientdoesnothaveanAustralianBusinessorAustralian CompanyNumberorisnotanindividual,thentheRecipientmay notbealegalentity.Ifthisisthecase,pleasecontactLegal ServicesBranchformoreinstruction.

FirstPage AgreementTitle FirstPage Parties

Insert: thetitleoftheAgreement. Insertthe: fullregisteredbusinessnameoftheRecipient; RecipientsAustralianBusinessNumberorAustralianCompany Number;and Recipientsregisteredbusinessaddress. Ensurethattheinformationinthissectionmatchestheinformationonthe CoverPage.

Schedule1,Item1 Term

CommencementDate: TheCommencementDateisthedatethattheAgreementobligationsbegin. TheCommencementDatemaybethedateofsigning,oritmayevenbeadate designatedbeforeorafterthedateofsigning. IftheCommencementDateisthedateofsigning,theDelegatecan handwritethisdateatthetimeofsigning. IftheCommencementDateisbeforeorafterthedateofsigning,this datemaybeinsertedanytimepriortosigning. IMPORTANTLY:IfyouwanttheCommencementDatetobepriortoContract execution(i.e.backdatetheAgreement),thenyoushouldconsultwithLegal ServicesBranch.Therearesomecircumstanceswhenitisacceptabletoback dateacontract. EndDate Insertthedateofexpiration. Ifyouwanttheexpirationdatetobethedateofaneventoccurring (e.g.deliveryofafinalreport),thenyoushoulddiscusswithLegal

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ServicesBranch.Insomecircumstances,itispossibletoendthe Agreementbasedontheoccurrenceofanevent,butcertainconditions mustbemet. Schedule1,Item2 Program Schedule1,Item3 ProgramObjectives InsertthenameoftheProgramunderwhichtheDepartmentwillprovidethe Funding. InserttheobjectivesoftheProgram.ThiscanbeabulletlistofbasicProgram aims.Often,theCallforExpressionsofInterestfortheFundingwilllistthe ProgramObjectives,inwhichcase,youcanreproducethatcontenthere.Best practiceistokeeptheProgramObjectivesbriefandconcise. Schedule1,Item4 Activity InsertadescriptionoftheActivityforwhichtheRecipientwillreceiveFunding. Often,thisdescriptionwillbeintheRecipientsapplicationforFunding. Youcaneither: summarisethisactivityifyoubelievethatthesummaryadequately capturesalloftheRecipientsobligationsundertheActivity;or youcanattachacopyofthedescriptionoftheActivityfromthe RecipientsapplicationforFundingasAnnexureAtothisSchedule1. IfyouattachtheRecipientsapplicationforFunding,thenpleasestate RefertoAnnexureA[insertnameoffundingapplication]and[insert whereintheapplicationforFundingthatthedescriptionforthe Activityislocatedforexample,page16]. ItisNOTnecessarytoincludespecificdatesforachievement/deliveryof Milestones/DeliverablesastheseitemsmustbelistedinSchedule2. Schedule1,Item5 Insurance TheamountofinsuranceshouldbesufficienttocovertheDepartments exposureintheeventthattheRecipientisnegligentorbreachesthe Agreement. Thisamountshouldbeinformedbyariskassessment. TheTemplateincludesanexample. Schedule1,Item6 Subcontractors IftheDepartmenthaspreapprovedanysubcontractors,thenidentifythem here.Otherwise,putN/A.

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Schedule1,Item7 RecipientConfidential Information

TheRecipientmustonlyengagecontractorsapprovedbytheDepartmentin writing. IftheRecipientwillprovidetheDepartmentwithConfidentialInformation,it mustbespecifiedhere. DescriptionsofConfidentialInformationneedtobeveryspecific. ItisNOTacceptabletohaveabroaddescriptionsuchasallbusiness informationoftheRecipient. UnderFinancialManagementGuidanceNo.3,Recipientinformationcanonly beconfidentialifitmeetsthefollowingfourcriteria: 1. theinformationisspecificallyidentified(i.e.theRecipientspricing information); 2. theinformationiscommerciallysensitive; 3. disclosurewouldcauseunreasonabledetrimenttotheowner;and 4. theinformationwasprovidedontheunderstandingthatitwould remainconfidential. [Note:DepartmentConfidentialInformationisdefinedbroadlyas(2)any informationofaconfidentialnaturethattheDepartmentgivestothe Recipientor(2)anyinformationidentifiedbytheDepartmenthas confidential.Forthisreason,theDepartmentdoesnotneedtoidentifyits ownConfidentialInformationintheSchedule.Ontheotherhand,only informationspecificallyidentifiedbytheRecipientintheSchedulewillbe consideredconfidential.]

Schedule1,Item8 SpecifiedPersonnel

IfthepartiesagreethatparticularPersonneloftheRecipientshouldperform thisContract,thenspecifythePersonnelherei.e.name,positionandrolein performanceoftheActivity. Otherwise,putN/A.

Schedule1,Item9 RecipientContact

InserttheRecipientscontactpersonsdetails. Address,email,fax,phone. Thispersonwillberesponsibleforreceivingallofficialcommunicationfromthe Department. InsertdetailsoftheDepartmentscontact. Address,email,fax,phone.

Schedule1,Item10 DepartmentContact

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Thispersonwillberesponsibleforreceivingallofficialcommunicationfromthe Recipient. Schedule1,Item11 Assets AssetsarebasicallycapitalpurchasedwiththeFunding.Assetshowever excludeIP. TherewillbetwokindsofAssets: (1) thoseownedbytheRecipient;and (2) thoseownedbytheDepartmentoraThirdParty(incaseswherethe AssetisleasedfromaThirdParty,theThirdPartyshouldbelistedas theownerastheycontinuetohaveownership). TheRecipientmustidentifybothkindsofAssets.Unlessidentifiedinthis ScheduleorotherwiseagreedbytheDepartment,theRecipientshouldbethe owneroftheAsset. Therearespecificreporting,disposalandhandlingrequirementsforAssetsin Clause7.Inparticular,forRecipientownedAssets,theRecipienthasspecific obligationsattheendoftheAgreementtodisposeoftheAssetinaccordance withtheDepartmentsinstructions.Thisrequirementreflectsthefactthatthe AssetispurchasedwithFunding(i.e.Commonwealthmoney),forwhichthe Departmentremainsaccountable. Schedule2,Item1 MilestonesandFunding InsertthetotalamountofFundinghere. FundingincludesDepartmentprovidedFundingANDActivityGeneratedIncome (seedefinitionofFundingandActivityGeneratedIncomeintheGlossary). Insert DepartmentprovidedFundingatItem1.A;and ActivityGeneratedIncomeatItem1.B. Ideally,allDepartmentprovidedFundingwillbelinkedtosatisfactorydelivery ofDeliverablesorachievementMilestones. Insomecases,however,itisnecessarytogivetheRecipientupfrontpayment onsigningoftheAgreement,inwhichcase,theMilestonewouldbesigning theAgreement.Thisisacceptableprovidedthat: (1) theamountofFundingreflectswhatisgenuinelyrequiredbythe RecipienttoundertaketheinitialpartoftheActivity;and (2) theDepartmentwithholdsasufficientamountofFundingtoensure

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completionoftheActivity. REPORTS TheRecipientmustprovidethefollowingreports: ProgressReporton30Juneand31DecemberofeachFinancialYear duringtheTerm(seeclause8.1); FinancialReporton30JuneofeachFinancialYearduringtheTerm(see clause8.2); bothFinancialandProgressReportsattheendoftheTermorearlier terminationoftheAgreement(seeclauses8.1and8.2). IfyouwanttolinkFundingtoprovisionofProgressorFinancialReports,then includethesereportsasDeliverables.RememberthattheTimeframeforthese reportsmustalignwiththedatesabove. Schedule2,Item2 Budget TheRecipientmustusetheFundinginaccordancewiththeBudget,whichis specifiedinthisItem2ofSchedule2(seeclause4.6). TheRecipientmustalsoaccountforOtherandRecipientContributions(see cause6). ThetotalmoneyincludedintheBudgetMUSTequalthetotalamountof Funding,RecipientContributionsandOtherContributions(seeItem1of Schedule2(totalamountofFunding)andSchedule3(totalamountofRecipient andOtherContributions)). Item2ofSchedule2specifies: (1) HowaparticularportionoftheDept.Funding,ActivityGenerated Income,OtherContributionsandRecipientContributionswillbespent fortheActivity(i.e.ExpenditureItem).Examplesincludepaymentfor personnelorhostingofaneventorevendevelopmentofawebsite. (2) TheproportionoftheDept.Funding,ActivityGeneratedIncomeOther ContributionsandRecipientContributionsusedinthisexpenditure. [EXAMPLE] Expenditure Dept. Recipient Other Total Activity Item Funding Generated Contributions Contributions Cost Income 5000 Personnel for Promotional Event 0 2000(valueof 0 inkind provisionof Recipient 7000

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Personnel) Website Schedule3,Item1 OtherContributions 10,000 2000 0 0 12000

IdentifyOtherContributionshere.IftherearenoOtherContributions,put N/A.Seeclause6.2. OtherContributionsarefinancialorinkindresources(withinkindresources valuedatcost)otherthantheFundingortheRecipientContributionsthatare usedtofundtheActivity. IftheRecipientincludedreceiptofOtherContributionsinitsfundingproposal, thentheseOtherContributionsshouldbeidentifiedhere,particularlyif FundingisgiventotheRecipientontheunderstandingthatotherparties wouldalsoprovidefunding. Underclause6.2,itisaconditionprecedentofthisAgreementthatthe RecipientprovideOtherContributionsidentifiedatItem1ofSchedule3.

Schedule3,Item2 RecipientContributions

IdentifyRecipientContributionshere.IftherearenoRecipientContributions, putN/A.Seeclause6.1. RecipientContributionsarefinancialorinkindresources(withinkind resourcesvaluedatcost)providedbytheRecipientfortheActivity. IftheRecipientincludedprovisionofRecipientContributionsinitsfunding proposal,thentheseRecipientContributionsshouldbeidentifiedhere.

Schedule4, SpecialConditions

ThisScheduleincludesadditionalconditions.Manyoftheseconditionsare specificforspecifictypesofcontract(forinstancebuildingconstruction).Ifno specialconditionsapplytoyourcontract,youcanreplacethemwithN/A.The templatehasafewexamplesforagreementsinvolvingbuildingconstruction. HandwritethedateupontheDepartmentsignatorysignstheFunding Agreement.

ExecutionBlock DateofFunding Agreement ExecutionBlock Signatures

SignatureoftheCommonwealth

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TheDelegatecansigntheAgreementafterhe/shereceivestwosignedcopies oftheAgreementfromtheRecipient.TheDelegatewillbetheperson authorisedtosigntheAgreementinaccordancewiththeDepartmental FinancialDelegations. SignatureoftheRecipient: IftheRecipientisacompanyregisteredundertheCorporationsAct2001(Cth) thenthefollowingpeoplemaysigntheAgreementinaccordancewithSection 127oftheCorporationsAct: twodirectorsofthecompany;or adirectorandacompanysecretaryofthecompany;or foraproprietarycompanythathasasoledirectorwhoisalsothesole companysecretarythatdirector. IftheRecipientisanincorporatedassociation,theAgreementmaybesigned; underacommonseal(exceptNSWwherethecommonsealmustbe accompaniedbythesignaturesoftwoauthorisedpeople);or byapublicofficerandsecretary(excepttheNTwherethelegislation onlyexpresslyallowsforuseofthecommonseal). IftheRecipientisanindividual,thentheindividualandawitnessmustsign. Incertaincircumstances,youcandepartfromtheaboveguidelines,butyou needtocontactLegalServicesBranchforfurtherguidance.

FUNDING AGREEMENT

Commonwealth of Australia represented by the Department of Climate Change and Energy Efficiency ABN 50 182 626 845 (Recipient Name) ABN (Recipient ABN or ACN) FUNDING AGREEMENT IN RELATION TO THE ENERGY EFFICIENCY INFORMATION GRANTS PROGRAM

CONTENTS

1. 1.1. 1.2. 1.3. 1.4. 1.5. 2. 2.1. 2.2. 2.3. 2.4. 2.5. 3. 3.1. 4. 4.1. 4.2. 4.3. 4.4. 4.5. 4.6. 4.7. 4.8. 5. 6. 6.1. 6.2. 7. 7.1. 7.2. 7.3. 7.4. 7.5. 7.6. 7.7. 7.8. 7.9.

Interpretation Definitions Interpretation Guidance on construction of Agreement Duration of Term Debt and Interest Activity Conduct of Activity Liaison and Monitoring Subcontractors Specified Personnel Review Payment Making of Payment Management of Funding Use of Funding Keeping of Funding Financial Records Use as security Refunds Budget Budget Flexibility No Additional Funding Taxes, Duties and Government Charges Recipient Contributions and Other Contributions Recipient Contributions Other Contributions Assets Acquisition of Asset Ownership of Asset Terms Applicable to Asset Use of Asset Recipients Responsibilities for Asset Sale or Disposal of Asset During Term Loss, Damage, etc of Asset Dealing with Asset Failure to Make Payment

1 1 7 7 8 8 8 8 9 9 10 10 10 10 11 11 11 12 12 12 12 12 13 13 13 13 14 14 14 14 15 15 15 15 16 16 16

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8. 8.1. 8.2. 8.3. 9. 9.1. 9.2. 9.3. 10. 10.1. 10.2. 10.3. 10.4. 10.5. 11. 11.1. 11.2. 11.3. 11.4. 11.5. 12. 12.1. 12.2. 13. 13.1. 13.2. 13.3. 14. 14.1. 14.2. 14.3. 14.4. 15. 15.1. 15.2. 15.3. 15.4.

Reporting Progress Reports Financial Reports Certification Commonwealth Material Ownership Possession of Commonwealth Material Maintain Commonwealth Material Intellectual Property Ownership Licence of Activity Material Licence of Existing Material Dealing with Intellectual Property Rights Consent to Specified Acts Confidential Information Confidential Information Not to be Disclosed Written Undertakings Exceptions to Obligations Period of Confidentiality No Reduction in Privacy Obligations Privacy Interpretation and Application of Clause Obligations of Recipient in Relation to Privacy Acknowledgement and Publicity Acknowledgement of Support Right to Publicise Funding Copies of Publications Indemnity Meaning of fault General Indemnity Reduction of Scope Preservation of Other Rights Dispute Resolution Procedure for Dispute Resolution Costs Application of Clause Performance of Obligations

16 16 17 18 18 18 19 19 19 19 19 19 19 20 20 20 20 20 21 21 21 21 22 22 22 22 23 23 23 23 24 24 24 24 24 24 25

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16. 16.1. 16.2. 16.3. 17. 17.1. 18. 18.1. 19. 19.1. 19.2. 20. 20.1. 20.2. 20.3. 20.4. 20.5. 20.6. 20.7. 20.8. 20.9. 20.10. 20.11.

Termination or Reduction in Scope of Agreement Termination for Convenience Termination for Fault Preservation of Other Rights Occupational Health and Safety Use of Departments Premises Corporate Governance Constitution Notices Format, Addressing and Delivery When Effective General Provisions Audit and Access Access to documents Insurance Conflict of Interest Relationship of Parties Waiver Variation of Agreement Assignment Survival Compliance with Legislation and Policies Applicable Law and Jurisdiction Schedule 1 FUNDING AGREEMENT Details
ENERGY EFFICIENCY INFORMATION GRANTS PROGRAM The objective of the program is to empower SMEs and community organisations to make informed decisions about energy efficiency.

25 25 26 27 27 27 27 27 29 29 29 29 29 30 30 31 31 31 31 32 32 32 32 33
33 33

Schedule 2 Milestones and Funding Schedule 3 Contributions Schedule 4 Special Conditions

35 36 37

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FUNDING AGREEMENT (LONG FORM)

Funding Agreement in relation to the Energy Efficiency Information Grants Program. Parties This Agreement is made between and binds the following parties:
1.

Commonwealth of Australia (Commonwealth) represented by and acting through the Department of Climate Change and Energy Efficiency ABN 50 182 626 845 (Department) AND

2.

[Funding Recipient Name] ABN [Funding Recipient ABN or ACN] of [Funding Recipient Address] (Recipient)

Context
A. B. C.

The Department is responsible for the delivery of the Program. The Activity will help achieve the objectives of the Program. The Commonwealth is required by law to ensure accountability for the Funds and accordingly the Recipient is required to be accountable for all Funds received. The Department has agreed to provide Funding to the Recipient to support the carrying out of the Activity. The Recipient agrees to accept the Funding for the Activities, and subject to the terms and conditions, set out in this Agreement.

D.

E.

Operative provisions In consideration of the mutual promises contained in this Agreement, the parties to this Agreement agree as follows:
1. 1.1. 1.1.1.

Interpretation Definitions In this Agreement, unless the context indicates otherwise: Activity means the activity described at Item 4 of Schedule 1, which aims to fulfil one or more of the Program Objectives and includes the provision of Activity Material. means any income earned or generated by the Recipient from its use of the Funding or Other Contributions including: a. interest earned from the investment of the Funding or Other Contributions;

Activity Generated Income

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b.

where the proceeds of insurance paid to the Recipient to replace an Asset exceed the amount actually paid by the Recipient to replace the Asset; and any income received by the Recipient as a result of its use of an Asset that reflects the proportion of the total cost of acquiring the Asset that was met by the Funding.

c.

Activity Material

means any Material: a. created for the purpose of this Agreement; b. c. provided or required to be provided to the Department under the Agreement; or derived at any time from the Material referred to in paragraphs a or b.

Agreement Annexure Approved Auditor

means this document and includes any Schedules and Annexures. means any annexure to Schedule 1. means a person who is: a. registered as a company auditor under the Corporations Act 2001 (Cth) or an appropriately qualified member of the Institute of Chartered Accountants in Australia or of CPA Australia; b. not a principal, member, shareholder, officer, agent, subcontractor, employee or related entity of the Recipient or of a related body corporate (the terms related entity and related body corporate have the same meaning as in section 9 of the Corporations Act 2001 (Cth)); and not the Recipients Qualified Accountant.

c. Asset

means any item of property, purchased, leased, hired, financed, created or otherwise brought into existence either wholly or in part with use of the Funding, which has a value of over $5,000 exclusive of GST, but excludes any Intellectual Property Rights. means the office established under the Auditor-General Act 1997 (Cth) and includes any other entity that may, from time to time, perform the functions of that office. means the standards of that name maintained by the Australian Accounting Standards Board created by section 226 of the Australian Securities and Investments Commission Act 2001 (Cth). means the standards made by the Auditing and Assurance Standards Board created by section 227A of the Australian Securities and Investments Commission Act 2001 (Cth).

Auditor-General

Australian Accounting Standards Australian Auditing Standards

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Budget

means a budget for expenditure of the Funding, the Recipient Contributions and Other Contributions for the purposes of conducting the Activity or performing obligations under this Agreement, as stipulated at Item 2 of Schedule 2. means any day other than a Saturday, Sunday, or national public holiday (which is a Commonwealth public service holiday throughout Australia as promulgated in the Commonwealth of Australia Gazettes); means the commencement date specified in the Term at Item 1 of Schedule 1. means any Material: a. provided by the Department to the Recipient for the purposes of this Agreement; or b. derived at any time from the Material referred to in paragraph a;

Business Day

Commencement Date Commonwealth Material

and does not include Activity Material. Confidential Information Constitution means Department Confidential Information and Recipient Confidential Information. means (depending on the context): a. a companys constitution, which (where relevant) includes rules and any amendments that are part of the companys constitution; or b. in relation to any other kind of body: i. ii. the bodys charter, rules or memorandum; or any instrument or law constituting or defining the constitution of the body or governing the activities of the body or its members.

Deliverable Department

means the deliverables listed at Item 1, of Schedule 2. means the Commonwealth represented by and acting through the Department of Climate Change and Energy Efficiency (or any other Commonwealth department or agency that is, from time to time, responsible for the administration of this Agreement) and includes, where the context permits officers, delegates, employees and agents, and successors of the Department. means: 1. information which by its nature is confidential; or 2. information identified by the Department as confidential; and 3. includes the Commonwealth Material and Contract

Department Confidential Information

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Material but excludes: 4. information that is already or becomes independently known to the Service Provider; or 5. information already in the public domain. Department Contact Depreciated means the Department contact person specified at Item 10 of Schedule 1. means the amount representing the reduction in value of an Asset calculated in accordance with Australian Accounting Standards. means any of the following: a. a person appointed to the position of a director or alternate director and acting in that capacity for 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); a member of the committee of an organisation incorporated pursuant to State or Territory laws relating to the incorporation of associations; or 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.

Director

c.

d.

Dispose

means to sell, licence, lease or sublease, or otherwise transfer or give up ownership or the right to occupy or use, or to enter into an agreement to do any of the preceding acts and Disposal means the method of so disposing. means the date that the Agreement expires as specified at Item 1 of Schedule 1. means all Material in existence prior to the date of this Agreement: a. incorporated in; b. c. supplied with, or as part of; or required to be supplied with, or as part of,

End Date Existing Material

the Activity Material. Financial Report Financial Year means the financial reports required under clause 8.2. means each period from 1 July to the following 30 June

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occurring during the Term, or any part of such a period occurring at the beginning or end of the Term. Funding GST Intellectual Property Rights means the Funding described at Item 1, of Schedule 2 and includes Activity Generated Income. has the meaning that it has in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). includes: a. all copyright (including rights in relation to phonograms and broadcasts); b. all rights in relation to inventions, plant varieties, trademarks (including service marks), designs, circuit layouts; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields,

c.

but does not include: d. Moral Rights; e. f. Interest the rights of performers; or rights in relation to Confidential Information.

means interest calculated at an interest rate equal to the general interest charge rate for a day pursuant to section 8AAD of the Taxation Administration Act 1953 (Cth), on a daily compounding basis. means anything in relation to which Intellectual Property Rights arise. means a stage of completion of the Activity as set out at Item 1 of Schedule 2. includes the following rights of an author of copyright Material: a. the right of attribution of authorship; b. c. the right of integrity of authorship; and the right not to have authorship falsely attributed.

Material Milestone Moral Rights

Other Contributions

means financial or in-kind resources (with in-kind resources valued at cost) other than the Funding or the Recipient Contributions, which are specified at in Item 1 of Schedule 3 and are used by the Recipient to perform the Activity. means a partys officers, employees, agents, contractor staff or professional advisers engaged in, or in relation to, the performance or management of this Agreement. means the Privacy Act 1998 (Cth). means the Office of the Privacy Commissioner established

Personnel

Privacy Act Privacy

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Commissioner Program

under the Privacy Act and includes any other entity that may, from time to time, perform the functions of that Office. means the part of the Departments operations specified at Item 2 of Schedule 1 under which the Department is able to provide the Funding to the Recipient. means the program objectives, if any, identified at Item 3 of Schedule 1. means a progress report required under clause 8.1. means a person who is a member of the Institute of Chartered Accountants in Australia or CPA Australia. as detailed at the commencement of this Agreement and includes, where appropriate, the officers, employees, agents, volunteers and subcontractors, and successors of the Recipient. means information that is described as Recipient Confidential Informationat Item 7 of Schedule 1. means the Recipient contact person specified at Item 9 of Schedule 1. means the financial or in-kind resources (with in-kind resources valued at cost), other than the Funding or Other Contributions, if any, which are specified at Item 2 of Schedule 3 and are used by the Recipient to perform the Activity. means a schedule to this Agreement and may include Annexures and incorporate other documents by reference. means any Special Conditions to this Agreement specified in Schedule 4. means any of the following classes or types of acts or omissions by or on behalf of the Department: a. using, reproducing, adapting or exploiting all or any part of the Activity Material, with or without attribution of authorship; supplementing the Activity Material with any other Material; or using the Activity Material in a different context to that originally envisaged,

Program Objectives Progress Report Qualified Accountant Recipient

Recipient Confidential Information Recipient Contact Recipient Contributions

Schedule Special Conditions Specified Acts

b. c.

but does not include false attribution of authorship. Specified Personnel means the Recipients Personnel specified at Item 8 of Schedule 1 as personnel required to undertake all or any part of the Activity.

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Term Third Party Interest

means the period specifiedat Item 1 of Schedule 1. means any legal or equitable right, interest, power or remedy in favour of any person other than the Department or the Recipient in connection with the Agreement, including, without limitation, any right of possession, receivership, control or power of sale, and any mortgage, charge, security or other interest. means the due dates for the Deliverables and Milestones specified at Item 1, of Schedule 2. in relation to the value of an Asset, means the value of the Asset which has not been Depreciated.

Timeframe Undepreciated

1.2. 1.2.1.

Interpretation In this Agreement, unless the contrary intention appears: a. b. c. d. e. f. words importing a gender include any other gender; words in the singular include the plural and words in the plural include the singular; Clause headings are for convenient reference only and have no effect in limiting or extending the language of provisions to which they refer; words importing a person include a partnership and a body whether corporate or otherwise; a reference to dollars is a reference to Australian dollars; a reference to any legislation or legislative provision includes any statutory modification, substitution or re-enactment of that legislation or legislative provision; 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; the Schedule and any attachments form part of the Agreement; if any conflict arises between the terms and conditions contained in the clauses of this Agreement and any part of the Schedule (and attachments if any), the terms and conditions of the clauses prevail; if any conflict arises between any part of the Schedule and any part of an attachment, the Schedule prevails; and a reference to the Schedule (or an attachment), is a reference to the Schedule (or an attachment) to the Agreement, including as amended or replaced from time to time by agreement in writing between the parties.

g. h. i.

j. k.

1.3. 1.3.1.

Guidance on construction of Agreement This Agreement records the entire agreement between the parties in relation to its subject matter.

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1.3.2.

As far as possible all provisions of this Agreement will be construed so as not to be void or otherwise unenforceable. If anything in this Agreement is void or otherwise unenforceable then it will be severed and the rest of the Agreement remains in force. A provision of this Agreement will not be construed to the disadvantage of a party solely on the basis that it proposed that provision. Duration of Term This Agreement is in effect for the Term. Debt and Interest The Recipient agrees to pay any amount owed or payable to the Department or which the Department is entitled to recover from the Recipient, under this Agreement, including any Interest, without prejudice to any other rights available to the Department under the Agreement, under statute, at law or in equity, at the discretion of the Department, as a debt due to the Department by the Recipient without further proof of the debt by the Department being necessary. If the Department notifies the Recipient that an amount is to be refunded or repaid to the Department and the amount is not refunded or repaid within 20 Business Days, or as otherwise notified by the Department, the Recipient agrees to pay Interest, unless the Department notifies the Recipient otherwise, on the amount outstanding after the expiry of the date it was due, until the amount is paid in full. In respect of any obligation the Recipient may have under this Agreement to pay the Department any Interest, the Recipient agrees that the Interest represents a reasonable pre-estimate of the loss incurred by the Department. Activity Conduct of Activity The Recipient must carry out the Activity: a. b. c. d. to achieve the Program Objectives; to meet the Milestones and provide the Deliverables within the Timeframes; in accordance with this Agreement (including any Special Conditions); and diligently, effectively and to a high professional standard.

1.3.3.

1.3.4.

1.4. 1.4.1. 1.5. 1.5.1.

1.5.2.

1.5.3.

2. 2.1. 2.1.1.

2.1.2.

Where the Department is satisfied that the Recipient does not have the capacity to adequately: a. manage the Funding; or

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b.

undertake the Activity in accordance with this Agreement,

the Department may by written notice immediately: c. d.


2.2. 2.2.1.

suspend, reduce or cease the release of Funding to the Recipient; and/or require the Recipient to refund some or all of the Funding to the Department.

Liaison and Monitoring The Department Contact and Recipient Contact have authority to receive and sign notices and written communications for the relevant party under this Agreement and accept any request or direction in relation to the Activity. The Recipient agrees to: a. b. liaise with and provide information to the Department as reasonably notified by the Department; and comply with all of the Departments reasonable requests, directions, or monitoring requirements.

2.2.2.

2.3. 2.3.1.

Subcontractors The Recipient agrees not to subcontract the performance of any obligations under this Agreement without the Departments prior written approval. In giving written approval, the Department may do so on such terms and conditions as the Department thinks fit. Any subcontractors approved by the Department at the date of this Agreement, and any terms and conditions relating to their use, are identified at Item 6 of Schedule 1. If the Recipient proposes to replace an approved subcontractor, the Recipient must also obtain the Departments approval for the proposed change under this clause 2.3. The Department may, on reasonable grounds, revoke an approval of a subcontractor, including any subcontractor identified at Item 6 of Schedule 1. The Recipient is fully responsible for the performance of the Recipients obligations under this Agreement regardless of whether the Recipient has subcontracted any of its obligations. The Recipient agrees, in any subcontract placed with a subcontractor, to: a. b. include an obligation on the subcontractor to comply with clause 20.10 and any Special Conditions as though the subcontractor were the Recipient; include obligations to comply with the following clauses: 11 (only if the Department agrees for the Recipient to disclose Department Confidential Information to the subcontractor), 12, 20.1 and 20.2 as though the subcontractor were the Recipient; and reserve a right of termination to take account of the Departments rights of termination under clause 16, and the Recipient agrees, where appropriate, to

2.3.2.

2.3.3.

c.

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make use of that right in the event of a termination or revocation by the Department.
2.4. 2.4.1.

Specified Personnel The Recipient agrees that the Specified Personnel will perform work in relation to the Activity in accordance with this Agreement. If Specified Personnel are unable to perform the work as required under this clause 2.4, the Recipient agrees to notify the Department immediately. The Recipient agrees, at the request of the Department acting on reasonable grounds, to remove Personnel (including Specified Personnel) from work in relation to the Activity. If the Department exercises its rights under clause 2.4.2 or clause 2.4.3, the Recipient will provide replacement Personnel acceptable to the Department at no additional cost and at the earliest opportunity. If the Recipient is unable to provide acceptable replacement Personnel, the Department may terminate this Agreement in accordance with the provisions of clause 16.2. Review The Recipient agrees to: a. b. c. provide all reasonable assistance required by the Department; respond to all of the Departments reasonable requests; and provide any information the Department reasonably requires,

2.4.2.

2.4.3.

2.4.4.

2.4.5.

2.5. 2.5.1.

in relation to conducting a review or evaluation of the Program.


3. 3.1. 3.1.1.

Payment Making of Payment Subject to sufficient funds being available for the Program, and compliance by the Recipient with this Agreement, the Department agrees to provide the Recipient with the Funding at the times and in the manner specified at Item 1 of Schedule 2. Without limiting the Departments rights, the Department may suspend any payment in whole or in part until the Recipient has performed its obligations under this Agreement.

3.1.2.

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4. 4.1. 4.1.1.

Management of Funding Use of Funding The Recipient must spend the Funding only for the Activity in accordance with this Agreement. The Recipient agrees to do all things necessary to ensure that all payments from the Funding that the Recipient makes to third parties (including subcontractors) are correctly made and properly authorised and that the Recipient maintains proper and diligent control over the incurring of all liabilities. Keeping of Funding The Recipient must: a. ensure that the Funding is held in an account in the Recipients name and which the Recipient solely controls, with an authorised deposit-taking institution authorised under the Banking Act 1959 (Cth) to carry on banking business in Australia; ensure that the account referred to in clause 4.2.1 a is: i. ii. c. d. established solely for the purposes of the Activity; and separate from the Recipients other operational accounts.

4.1.2.

4.2. 4.2.1.

b.

notify the Department, prior to the receipt of any Funding, of details sufficient to identify the account; if requested by the Department, provide written notification to the authorised deposit-taking institution at which the account is established that the Funding is held for the purposes of the Activity, and provide a copy of that notification to the Department; on notification from the Department, provide the Department and the authorised deposit-taking institution with a written authority for the Department to obtain any details relating to any use of the account; if the account changes, notify the Department within 10 Business Days of the change occurring, and provide the Department with details of the new account; unless the Recipient is a sole director company or an individual, ensure that as a minimum, two signatories, who have the Recipients authority to do so, are required to operate the account; and identify the receipt and expenditure of the Funding separately within the Recipients accounts and records so that at all times the Funding is identifiable.

e.

f.

g.

h.

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4.3. 4.3.1.

Financial Records The Recipient agrees to keep financial accounts and records relating to the Activity so as to enable: a. b. c. all receipts and payments related to the Activity to be identified and reported in accordance with this Agreement; provision of Financial Reports and the statement required under clause 8.2.3; and the identification of all the Recipients taxation liabilities and payments.

4.4. 4.4.1.

Use as security Except with the prior written approval of the Department, the Recipient agrees not to use any of the following as any form of security for the purpose of obtaining or complying with any form of loan, credit, payment or other interest, or for the preparation of, or in the course of, any litigation: a. b. c. the Funding; this Agreement or any of the Departments obligations under the Agreement; or any Assets or Intellectual Property Rights in Activity Material.

4.5. 4.5.1.

Refunds If, at any time the Department determines that: a. b. there remains an amount of Funding that has not been spent or legally committed for expenditure in accordance with the Agreement; or Funding has not been spent in accordance with the Agreement,

then at the discretion of the Department, the Recipient agrees to refund this amount to the Department. This amount must be refunded within 20 Business Days of a notice from the Department, dealt with as notified by the Department, or the Department may reduce further payments of Funding to the Recipient by up to this amount.
4.6. 4.6.1. 4.7. 4.7.1.

Budget The Recipient must only spend the Funding in accordance with the Budget. Budget Flexibility Subject to clauses 4.7.2 and 4.7.3, the Recipient may spend the Funding on any separate category of expenditure item within the Budget.

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4.7.2.

The Recipient agrees to obtain prior written approval from the Department for any transfer of Funding between categories of expenditure items within the Budget which exceeds 10% of the total Budget. The total amount of transfers in any Financial Year must not exceed 20% of the Budget for that Financial Year. No Additional Funding The Department is not responsible for the provision of additional money to meet any expenditure in excess of the Funding. Taxes, Duties and Government Charges Unless otherwise indicated, the Recipient agrees to pay all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this Agreement. However, if any such tax, duty or government charge, which was not reasonably known to the Recipient on the date of this Agreement, has a material effect on the Recipients ability to carry out the Activity, the parties agree to renegotiate the scope of the Activity in good faith, having regard to the effect of the tax, duty or government charge. Unless otherwise indicated, any consideration for a supply made under this Agreement is exclusive of any GST imposed on the supply. If one party (the supplier) makes a taxable supply to the other party (the recipient) under this Agreement, on receipt of a tax invoice from the supplier, the recipient will pay without set-off an additional amount to the supplier equal to the GST imposed on the supply in question. No party may claim or retain from the other party any amount in relation to a supply made under this Agreement for which the first party can obtain an input tax credit or decreasing adjustment. Recipient Contributions and Other Contributions Recipient Contributions The Recipient agrees to provide the Recipient Contributions for the Activity. The Recipient Contributions must not include any amount that has been provided to the Recipient by a Commonwealth, State, Territory or local government. If the Recipient does not provide the Recipient Contributions or provide them in time to enable completion of the Activity, then the Department may: a. b. suspend payment of the Funding or an instalment of the Funding (as the case may be) until the Recipient Contributions are provided; or terminate this Agreement in accordance with clause 16.2.

4.7.3.

4.8. 4.8.1.

5. 5.1.1.

5.1.2.

5.1.3.

5.1.4.

6. 6.1. 6.1.1.

6.1.2.

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6.2. 6.2.1.

Other Contributions Unless otherwise specified at Item 1 of Schedule 3, it is a condition precedent to the payment of Funding under this Agreement that: a. the Recipient agrees to provide the Department with satisfactory written evidence that the persons identified in Item 1 of Schedule 3 will provide the Other Contributions, including the amounts to be provided, the due dates for each of these amounts and the terms and conditions of the provision of the Other Contributions; and the basis on which these Other Contributions are to be provided is satisfactory to the Department.

b.

6.2.2.

The Recipient agrees that, unless otherwise agreed by the Department, the written evidence required by clause 6.2.1.a. will be provided to the Department within 20 Business Days of the date of this Agreement, failing which the Department may terminate this Agreement in accordance with clause 16.2. If the Recipient is not able to obtain Other Contributions or obtain them in time to enable completion of the Activity, then the Department may: a. b. suspend payment of the Funding or an instalment of the Funding until the Other Contributions are received; or terminate this Agreement in accordance with clause 16.2

6.2.3.

6.2.4.

The Recipient agrees to notify the Department within 10 Business Days of entering into any arrangement under which the Recipient is entitled to receive any additional monetary or in-kind contributions in respect of the Activity that are not identified as Other Contributions at Item 1 of Schedule 3. Any such additional contribution that the Recipient becomes entitled to receive after the date of this Agreement constitutes Other Contributions for the purposes of the Agreement (and Item 1 of Schedule 3 is deemed to be varied accordingly) on the date on which the Recipient notifies the Department of that contribution under this clause 6. Assets Acquisition of Asset The Recipient agrees not to use the Funding to acquire or create any Asset, apart from those detailed at Item 11 of Schedule 1 without obtaining the Departments prior written approval. Approval may be given subject to any conditions the Department may impose. Ownership of Asset Unless it is specified in Item 11 of Schedule 1 that the Department or a third party own the Asset or the Department provides written consent to a third party owning

6.2.5.

7. 7.1. 7.1.1.

7.2. 7.2.1.

Long Form Funding Agreement Page 14

the Asset, then the Recipient must ensure that it owns any Asset acquired with the Funding.
7.3. 7.3.1. 7.3.2.

Terms Applicable to Asset If the Department owns the Asset, clauses 7.6, 7.8.2 and 7.9 do not apply. If the Asset is owned by a third party then the Recipient agrees to ensure that the terms of the lease, hire or finance arrangement are consistent with this clause 7, except for clauses 7.6, 7.7, 7.8 and 7.9. Use of Asset During the Term, the Recipient agrees to use any Asset in accordance with this Agreement and for the purposes of the Activity. Recipients Responsibilities for Asset Throughout the Term, the Recipient agrees to: a. not encumber or Dispose of any Asset, or deal with or use any Asset other than in accordance with this clause 7, without the Departments prior written approval; hold all Assets securely and safeguard them against theft, loss, damage, or unauthorised use; maintain all Assets in good working order; maintain all appropriate insurances for all Assets to their full replacement cost noting the Departments interest, if any, in the Asset under the Agreement; if required by law, maintain registration and licensing of all Assets; be fully responsible for, and bear all risks relating to, the use or Disposal (where approved by the Department) of all Assets; maintain an Assets register in the form and containing the details as described at Item 11 of Schedule 1; and as and when requested by the Department, provide copies of the Assets register to the Department.

7.4. 7.4.1.

7.5. 7.5.1.

b. c. d.

e. f. g. h.

7.6. 7.6.1.

Sale or Disposal of Asset During Term If the Recipient Disposes of an Asset during the Term, the greater of the following proportions must be accounted for as Activity Generated Income and used for the Activity: a. b. the proportion of the sale proceeds from the Asset; or the proportion of the Undepreciated value of the Asset,

Long Form Funding Agreement Page 15

that is equivalent to the proportion of the cost of the Asset that was funded from the Funding.
7.7. 7.7.1.

Loss, Damage, etc of Asset If any of the Assets are lost, damaged or destroyed, the Recipient agrees to promptly reinstate the Assets including from the proceeds of the insurance, and this clause 7 continues to apply to the reinstated Assets. The proportion of any surplus from the proceeds of the insurance, which reflects the proportion of the cost of the Asset that was funded from the Funding, must be notified to the Department and accounted for as Activity Generated Income and used for the Activity. Dealing with Asset On expiry of the Term or earlier termination of the Agreement, the Department may require the Recipient to deal with an Asset as the Department may, at the sole discretion of the Department, notify the Recipient. Subject to clause 7.8.1, if on expiry of the Term or the earlier termination of this Agreement, an Asset has not been fully Depreciated, the Department may, by written notice, require the Recipient to: a. pay to the Department within 20 Business Days of the expiry of the Term or earlier termination of the 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; sell the Asset for the best price reasonably obtainable and pay to the Department 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 the Recipient) that was funded from the Funding; or continue to use the Asset for the purposes, and in accordance with any conditions, notified by the Department.

7.8. 7.8.1.

7.8.2.

b.

c.

7.8.3. 7.9. 7.9.1.

The Recipient must comply with any notice issued under clause 7.8.2. Failure to Make Payment Amounts payable to the Department under clause 7.8.2 form part of the Funding and are recoverable as such. Reporting Progress Reports The Recipient must provide a Progress Report within 20 Business Days after: a. 30 June and 31 December of each Financial Year during the Term; and

8. 8.1. 8.1.1.

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b.

the expiry of the Term, completion of the Activity or the termination or expiry of this Agreement, whichever is the earlier.

8.1.2.

The Progress Report must have the following information: a. b. c. d. a detailed description including evidence of completion of any Milestones and delivery of Deliverables; whether the Activity has been completed; whether the Program Objectives have been achieved; and whether the Funding has been generated and used in accordance with the Budget.

8.2. 8.2.1.

Financial Reports Within 20 Business Days after: a. b. the completion of each Financial Year during the Term; and the expiry of the Term, completion of the Activity or the termination or expiry of this Agreement, whichever is the earlier,

the Recipient must provide to the Department a Financial Report.


8.2.2.

The Financial Report must include the following information: a. audited financial statements prepared by an Approved Auditor in accordance with Australian Accounting Standards in respect of the Funding, Recipient Contributions and the Other Contributions (if any) (separately and in the context of the Recipients overall financial position), which must include a definitive statement as to whether the financial information for the Activity represents the financial transactions fairly and is based on proper accounts and records; a written statement by a Qualified Accountant detailing the balance of the Recipients account referred to in clause 4.2.1.a); a copy of a letter to the Recipient from the Approved Auditor, or a report from the Approved Auditor, including: i. ii. specific comment on the adequacy of financial controls being maintained by the Recipient; specific comment on the Recipients financial position as it relates to any issues affecting the Recipients ability to repay surplus Funding or complete the Activity with available Funding; and

b. c.

iii. where there are any qualifications or limitations on the audit, an outline of the reasons for the qualifications or limitations and the remedial action recommended.

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8.2.3.

The Financial Report must be accompanied by a statement in accordance with clause 8.3.1 that: a. all Funding, Other Contributions and Recipient Contributions received were spent for the purpose of the Activity and in accordance with this Agreement, and that the Recipient has complied with the Agreement; unless the Term has expired or the Agreement has been terminated, the unspent portion of the Funding (if any) is available for use within the next reporting period; where an Asset has been created or acquired with the Funding, that clauses 7.5.1.d and 7.5.1.g have been complied with in respect to the Asset; and at the time the Financial Report is provided to the Department, the Recipient is able to pay all the Recipients debts as and when they fall due and the Recipient has sufficient resources to discharge all the Recipients debts at the end of the current Financial Year.

b.

c. d.

8.3. 8.3.1.

Certification The statement referred to in clause 8.2.3 must be provided: a. if the Recipient is an incorporated body, by the Recipients Chairperson, Chief Executive Officer, Chief Financial Officer or a person authorised by the Recipient to execute documents and legally bind the Recipient by their execution. Satisfactory evidence of the authorisation is to be provided to the Department before the statement is made; if the Recipient is an unincorporated association or partnership, by: i. ii. a majority of the members; or a person or persons authorised by a majority of the members to act on behalf of the members in accordance with the Recipients Constitution. Satisfactory evidence of the authorisation is to be provided to the Department before the statement is made;

b.

c. d.
9. 9.1. 9.1.1.

if the Recipient is a joint venture, the Chief Executive Officer or Chief Financial Officer of each joint venturer must certify the one statement; or if the Recipient is an individual, by that individual.

Commonwealth Material Ownership Ownership of all Commonwealth Material, including Intellectual Property Rights in that Material, remains vested at all times in the Department but the Department grants the Recipient a licence to use, reproduce, adapt and exploit that Material only for the purposes of this Agreement and in accordance with any conditions or restrictions the Department may notify to the Recipient.

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9.2. 9.2.1.

Possession of Commonwealth Material Upon the expiration of the Term or earlier termination of the Agreement, the Recipient may retain all Commonwealth Material remaining in the Recipients possession, unless otherwise notified by the Department. Maintain Commonwealth Material The Recipient agrees to keep safely Commonwealth Material provided to the Recipient for the purposes of this Agreement. Intellectual Property Ownership Subject to this clause 10, Intellectual Property Rights in Activity Material vest immediately in the Recipient. Clause 10.1.1 does not affect the position between the Recipient and a third party. Licence of Activity Material The Recipient grants to the Department a permanent, irrevocable, royalty-free, worldwide, non-exclusive licence (including a right of sub-licence) to use, reproduce, communicate, adapt and exploit Intellectual Property Rights in the Activity Material for any purpose. Licence of Existing Material This clause 10 does not affect the ownership of any Intellectual Property Rights in any Existing Material. The Recipient, however, agrees to grant to the Department or procure a permanent, irrevocable, royalty-free, worldwide, nonexclusive licence (including a right of sub-licence) to use, reproduce, communicate, adapt and exploit the Intellectual Property Rights in Existing Material in conjunction with the Activity Material. Dealing with Intellectual Property Rights The Recipient: a. agrees, if requested by the Department to do so, to bring into existence, sign, execute or otherwise deal with any document which may be necessary or desirable to give effect to this clause 10 ; and warrants that it is entitled, or will be entitled at the relevant time, to deal with the Intellectual Property Rights in the Activity Material and the Existing Material in accordance with this clause 10.

9.3. 9.3.1.

10. 10.1. 10.1.1.

10.1.2.

10.2. 10.2.1.

10.3. 10.3.1.

10.4. 10.4.1.

b.

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10.5. 10.5.1.

Consent to Specified Acts Where the Recipient is a natural person and the author of the Activity Material, the Recipient consents to the performance of the Specified Acts by the Department or any person claiming under or through the Department and agrees to comply with clauses 10.5.2.b) and 10.5.2.c). In any other case, the Recipient agrees: a. to obtain from each author of any Activity Material a written consent to the Specified Acts (whether occurring before or after the consent is given) which extends directly or indirectly to the performance of the Specified Acts by the Department or any person claiming under or through the Department; to obtain from each author of any Existing Material a written consent to the Specified Acts (whether occurring before or after the consent is given) which extends directly or indirectly for the Departments benefit in relation to the Departments licensed use of such material; and upon request, to provide the executed original of each such consent to the Department.

10.5.2.

b.

c.

11. 11.1. 11.1.1.

Confidential Information Confidential Information Not to be Disclosed Subject to clause 11.3, a party must not, without the prior written consent of the other party, disclose any Confidential Information of the other party to a third party, including any subcontractors. Written Undertakings A party may at any time require the other party to arrange for: a. b. the other partys Personnel; or any person with a Third Party Interest,

11.2. 11.2.1.

to give a written undertaking in the form of a deed relating to the use and non disclosure of the first partys Confidential Information.
11.3. 11.3.1.

Exceptions to Obligations The obligations on the parties under this clause 11 will not be taken to have been breached to the extent that Confidential Information: a. b. is disclosed by a party to its Personnel solely in order to comply with obligations, or to exercise rights, under this Agreement; is disclosed to a partys internal management Personnel, solely to enable effective management or auditing of Agreement-related activities;

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c. d. e.

is disclosed by the Department to the responsible Minister or Parliamentary Secretary; is disclosed by the Department in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia; is shared by the Department within the Departments organisation, or with another Department, where this serves the Commonwealths legitimate interests; is authorised or required by law to be disclosed; or is in the public domain otherwise than due to a breach of this clause 11 .

f. g.
11.3.2.

Where a party discloses Confidential Information to another person pursuant to clauses 11.3.1.a - 11.3.1.e, the disclosing party must notify the receiving person that the information is confidential. In the circumstances referred to in clauses 11.3.1.a, 11.3.1.b and 11.3.1.e, the disclosing party agrees not to provide the information unless the receiving person agrees to keep the information confidential. The Recipient agrees to secure all of the Commonwealth's Confidential Information against loss and unauthorised access, use, modification or disclosure. Period of Confidentiality The obligations under this clause 11 will continue after expiry or termination of this Agreement.

11.3.3.

11.3.4.

11.4.

11.5. 11.5.1.

No Reduction in Privacy Obligations This clause 11 does not detract from any of the Recipients obligations under the Privacy Act or under clause 12, in relation to the protection of Personal Information (as defined in clause 12.1.1). Privacy Interpretation and Application of Clause In this clause 12: Information Privacy Principle Personal Information has the same meaning as it has in the Privacy Act; and

12. 12.1. 12.1.1.

has the same meaning as it has in the Privacy Act.

12.1.2.

This clause applies only where the Recipient deals with Personal Information when, and for the purpose of, conducting the Activity.

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12.2. 12.2.1.

Obligations of Recipient in Relation to Privacy The Recipient agrees, in conducting the Activity: a. b. not to do any act or engage in any practice which, if done or engaged in by the Department, would be a breach of an Information Privacy Principle; and to comply with any directions, guidelines, determinations or recommendations of the Department, to the extent that they are consistent with the Information Privacy Principles.

12.2.2.

The Recipient agrees to notify the Department immediately if it becomes aware of: a. b. a breach or possible breach of any of its obligations under this clause 12 ; or any unauthorised access or attempted unauthorised access to Personal Information held by the Recipient in relation to this Agreement.

13. 13.1. 13.1.1.

Acknowledgement and Publicity Acknowledgement of Support Unless or until notified by the Department, the Recipient agrees, in all publications, promotional and advertising materials, public announcements and activities by the Recipient or on the Recipients behalf in relation to the Activity, or any products, processes or inventions developed as a result of it, to acknowledge the financial and other support the Recipient has received from the Australian Government, in the manner set out in this clause 13 or as otherwise approved by the Department prior to its use. The Recipient must acknowledge the provision of the Funding by the Commonwealth by use of the Australian Government Logo and in the following statement: This Activity received funding from the Department of Climate Change and Energy Efficiency as part of an Energy Efficiency Information Grants Program.

13.1.2.

13.1.3.

All Activity Material published by the Recipient with the Australian Government Logo must contain the following disclaimer: The views expressed herein are not necessarily the views of the Commonwealth of Australia, and the Commonwealth does not accept responsibility for any information or advice contained herein.

13.2. 13.2.1.

Right to Publicise Funding The Department reserves the right to publicise and report on the awarding of Funding to the Recipient. The Department may do (but is not limited to doing) this by including the Recipients name, the amount of the Funding given to the

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Recipient, the title and a brief description of the Activity in media releases, general announcements about the Funding, annual reports or through any other means as determined by the Department.
13.2.2.

Nothing in this clause 13.2 limits or derogates from the Recipient's obligations under clauses 11 and 12. Copies of Publications Where the Recipient has been provided with Funding to produce any publication, a copy of the publication must be provided to the Department, if notified by the Department. Indemnity Meaning of fault In this clause 14, fault means any negligent or unlawful act or omission, or wilful misconduct. General Indemnity The Recipient indemnifies (and agrees to keep indemnified) the Department against any: a. b. c. cost or liability incurred by the Department or the Departments Personnel; loss of or damage to property of the Department; or loss or expense incurred by the Department in dealing with any claim against it, including legal costs and expenses on a solicitor/own client basis and the cost of time spent, resources used, or disbursements paid by the Department,

13.3. 13.3.1.

14. 14.1. 14.1.1.

14.2. 14.2.1.

arising from: d. any act or omission by the Recipient or the Recipients Personnel, 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; any breach by the Recipient of the Agreement; use or Disposal of the Assets; or the use by the Department of the Activity Material or Existing Material, including any claims by third parties about the ownership or right to use Intellectual Property Rights or Moral Rights in the Activity Material or Existing Material.

e. f. g.

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14.3. 14.3.1.

Reduction of Scope The Recipients liability to indemnify the Department under this clause 14 will be reduced proportionally to the extent that any act or omission involving fault on the part of the Department or its Personnel contributed to the relevant cost, liability, loss, damage or expense. Preservation of Other Rights The right of the Department to be indemnified under this clause 14 is in addition to, and not exclusive of, any other right, power or remedy provided by law, but the Department is not entitled to be compensated in excess of the amount of the relevant cost, liability, loss, damage or expense. Dispute Resolution Procedure for Dispute Resolution The parties agree that a dispute arising under this Agreement will be dealt with as follows: a. b. c. d. the party claiming that there is a dispute will give the other party a notice setting out the nature of the dispute; within 5 Business Days each party will nominate a representative not having any prior involvement in the dispute; the representatives will try to settle the dispute by direct negotiation between them; failing settlement within a further 10 Business Days, the parties may agree to refer the dispute to an independent third person with power: i. ii. e. f. to intervene and direct some form of resolution, in which case the parties will be bound by that resolution; or to mediate and recommend some form of non-binding resolution;

14.4. 14.4.1.

15. 15.1. 15.1.1.

the parties will co-operate fully with any process instigated under clause 15.1.1 d in order to achieve a speedy resolution; and if a resolution is not reached within a further 20 Business Days, either party may commence legal proceedings.

15.2. 15.2.1.

Costs Each party will bear its own costs of complying with this clause 15 and the parties will bear equally the cost of any third person engaged under clause 15.1.1.d. Application of Clause This clause 15 does not apply to: a. legal proceedings by either party for urgent interlocutory relief; or

15.3. 15.3.1.

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b.

action by the Department under or purportedly under clauses 3, 4, 20.1 or 16.

15.4. 15.4.1.

Performance of Obligations Despite the existence of a dispute, the Recipient will (unless requested in writing by the Department not to do so) continue to perform the Recipients obligations under this Agreement. Termination or Reduction in Scope of Agreement Termination for Convenience The Department may by notice, at any time and in its absolute discretion, terminate this Agreement or reduce the scope of the Agreement immediately. The Recipient agrees, on receipt of a notice of termination or reduction, to: a. b. c. d. stop or reduce the performance of the Recipients obligations as specified in the notice; take all available steps to minimise loss resulting from that termination or reduction; continue work on any part of the Activity not affected by the notice; and immediately return to the Department any Funding in accordance with clause 16.1.3.d), or deal with any such Funding as directed by the Department.

16. 16.1. 16.1.1.

16.1.2.

16.1.3.

In the event of termination under clause 16.1.1, the Department: a. b. c. will be liable only for payments due and owing to the Recipient under the payment provisions of the Agreement as at the date of the notice; will be liable to reimburse any reasonable costs incurred by the Recipient and directly attributable to the termination of the Agreement; will not be liable to pay amounts under 16.1.3.a and 16.1.3.b which would, added to any payments already paid to the Recipient under this Agreement, together exceed the Funding set out at Item 1 of Schedule 2; will be entitled to recover from the Recipient any part of the Funding which: i. has not been legally committed for expenditure by the Recipient in accordance with the Agreement and payable by the Recipient as a current liability by the date that the notice of termination is received; or has not, in the Departments opinion, been spent by the Recipient in accordance with the Agreement.

d.

ii.

16.1.4.

In the event of a reduction in the scope of the Agreement under clause 16.1.1, the Departments liability to pay any part of the Funding will, unless there is

Long Form Funding Agreement Page 25

agreement in writing to the contrary, reduce in accordance with the reduction in the Activity.
16.1.5.

The Departments liability to pay any compensation under or in relation to this clause 16.1 is subject to: a. b. the Recipients compliance with this clause 16.1; and the Recipients substantiation of any amount claimed under clause 16.1.3.b.

16.1.6.

The Recipient will not be entitled to compensation for loss of prospective profits or loss of any benefits that would have been conferred on the Recipient. Termination for Fault The Department may by notice terminate this Agreement immediately (but without prejudice to any right of action or remedy which either party has or may have) if: a. the Recipient fails to fulfil, or is in breach of any of its obligations under this Agreement, and the Department considers that this failure or breach is not capable of remedy; the Recipient fails to fulfil, or is in breach of any of its obligations under this Agreement, and does not rectify the omission or breach within 20 Business Days of receiving a notice from the Department to do so; the Recipient, by written notice to the Department, withdraws from the Activity; the Recipient is unable to pay all its debts as and when they become due and payable; the Recipient has applied to come under, received a notice requiring it to show cause why it should not come under, or has otherwise come under one of the forms of external administration referred to in Chapter 5 of the Corporations Act 2001 (Cth) or equivalent provisions in legislation of the States and Territories pertaining to incorporated associations or Chapter 11 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) or an order has been made for the purpose of placing the Recipient under external administration; being an individual, the Recipient becomes bankrupt or enters into a scheme of arrangement with creditors; in relation to the Agreement, the Recipient breaches any law of the Commonwealth, or of a State or Territory; the Department is satisfied that any statement made in the Recipients application for Funding is incorrect, incomplete, false or misleading in a way which would have affected the original decision to approve the Funding; or

16.2. 16.2.1.

b.

c. d. e.

f. g. h.

Long Form Funding Agreement Page 26

i.

the Department exercises any other specific right of termination under the Agreement.

16.2.2.

Where the Department terminates this Agreement under clause 16.2.1 the Department: a. b. will be liable only for payments due and owing to the Recipient under the payment provisions of the Agreement as at the date of the notice; and will be entitled to recover from the Recipient any part of the Funding which: i. has not been legally committed for expenditure by the Recipient in accordance with the Agreement and is not payable by the Recipient as a current liability by the date that the notice of termination is received; or has not, in the Departments opinion, been spent by the Recipient in accordance with the Agreement.

ii.

16.3. 16.3.1.

Preservation of Other Rights Clause 16.2 does not limit or exclude any of the Departments other rights under this Agreement. Occupational Health and Safety Use of Departments Premises The Recipient agrees, when using the Departments premises or facilities, to comply with all reasonable directions and procedures relating to occupational health, safety and security in effect at those premises or in regard to those facilities, as notified by the Department or as might reasonably be inferred from the use to which the premises or facilities are being put. Corporate Governance Constitution The Recipient agrees to provide a copy of the Recipients Constitution to the Department upon notification by the Department. The Recipient agrees to inform the Department whenever there is a change in the Recipients Constitution, structure or management. The Recipient agrees not to employ, engage or elect any person who would have a role in the Recipients management, financial administration or the performance of the Activity if: a. b. the person is an undischarged bankrupt; there is in operation a composition, deed of arrangement or deed of assignment with the persons creditors under the law relating to bankruptcy;

17. 17.1. 17.1.1.

18. 18.1. 18.1.1.

18.1.2.

18.1.3.

Long Form Funding Agreement Page 27

c. d.

the person has suffered final judgment for a debt and the judgment has not been satisfied; subject to Part VIIC of the Crimes Act 1914 (Cth), the person: i. ii. has been convicted of an offence within the meaning of paragraph 85ZM (1) of that Act unless: that conviction is regarded as spent under paragraph 85ZM(2) (taking into consideration the application of Division 4 of Part VIIC);

iii. the person was granted a free and absolute pardon because the person was wrongly convicted of the offence; or iv. the persons conviction for the offence has been quashed; e. that person is or was a Director or occupied an influential position in the management or financial administration of an organisation that had failed to comply with funding requirements of the Commonwealth; or the person is otherwise prohibited from being a member or Director or employee or responsible officer of the Recipients organisation under the relevant local government legislation.

f.

18.1.4.

Where a person falls or is discovered as falling within any of clauses 18.1.3.a to 18.1.3.f while employed or engaged by the Recipient, or after being elected as an officer of the Recipient, the Recipient will be in breach of clause 18.1.3 if the Recipient does not: a. b. transfer the person to a position which does not have a role in the Recipients management, financial administration or the performance of the Activity; or terminate the employment or engagement of the person or remove the person from office,

as the case may be, and immediately notify the Department of the Recipients action.
18.1.5.

If the Recipient advises the Department that the Recipient considers such termination action would be a breach of a statutory provision binding on the Recipient, the Department will take the Recipients view into account in deciding what action to take as a result of the breach. If the Recipient is an Aboriginal and Torres Strait Islander corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act), in the event that the Recipients public officer receives a notice from the Registrar of Aboriginal and Torres Strait Islander Corporations under section 487-10 of the CATSI Act calling upon the Recipient to show cause why an administrator should not be appointed, the Recipient agrees to notify the Department within 5 Business Days of the date of receipt of such a notice.

18.1.6.

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18.1.7.

If the Recipient is registered under the Corporations Act 2001 (Cth), in the event that the Recipient applies to come under, receives a notice requiring the Recipient to show cause why the Recipient should not come under, receives a notice or an application from any other person for the Recipient to come under or has otherwise come under one of the forms of external administration referred to in Chapter 5 of the Corporations Act 2001 or an order has been made for the purpose of placing the Recipient under external administration, the Recipient agrees to notify the Department within 5 Business Days of the date of the making or receipt of such a notice or application or the making of such an order. Notices Format, Addressing and Delivery A notice under this Agreement is only effective if it is in writing, and dealt with as follows: a. b. if given by the Recipient to the Department - addressed to the Department Contact; or if given by the Department to the Recipient - given by the Department and addressed (and marked for attention) to the Recipient Contact.

19. 19.1. 19.1.1.

19.1.2.

A notice is to be: a. b. c. signed by the person giving the notice and delivered by hand; signed by the person giving the notice and sent by pre-paid post; or transmitted electronically by the person giving the notice by electronic mail or facsimile transmission.

19.2. 19.2.1.

When Effective A notice is deemed to be effected: a. b. c. if delivered by hand - upon delivery to the relevant address; if sent by post - upon delivery to the relevant address; or if transmitted electronically - upon actual receipt by the addressee.

19.2.2.

A notice received after 5.00 pm, or on a weekend or public holiday in the place of receipt, is deemed to be effected on the next Business Day in that place. General Provisions Audit and Access The Recipient agrees:

20. 20.1. 20.1.1.

Long Form Funding Agreement Page 29

a.

to give the Department, or any persons authorised in writing by the Department, access to premises where obligations under this Agreement are being carried out; and to permit those persons to inspect and take copies of any Material relevant to this Agreement.

b.

20.1.2.

The rights referred to in clause 20.1.1. are subject to: a. b. c. the Department providing reasonable prior notice; the reasonable security procedures in place at the premises; and if appropriate, execution of a deed of confidentiality by the persons to whom access is given.

20.1.3.

The Auditor-General and the Privacy Commissioner are persons authorised for the purposes of clause 20.1.1. This clause 20.1 does not detract from the statutory powers of the AuditorGeneral or the Privacy Commissioner. Access to documents In this clause 20.2, document and Commonwealth contract have the same meaning as in the Freedom of Information Act 1982 (Cth). The Recipient acknowledges that this Agreement is a Commonwealth contract. Where the Department has received a request for access to a document created by, or in the possession of this Agreement (and to the entry into this Agreement), the Department may at any time by written notice require the Recipient to provide the document to the Department and the Recipient must, at no additional cost to the Department, promptly comply with the notice. The Recipient must include in any subcontract relating to the performance of this Agreement provisions that will enable the Recipient to comply with its obligations under this clause 20.2. Insurance The Recipient agrees: a. b. to effect and maintain the insurance specified at Item 5 of Schedule 1; and on request, to provide proof of insurance acceptable to the Department.

20.1.4.

20.2. 20.2.1.

20.2.2. 20.2.3.

20.2.4.

20.3. 20.3.1.

20.3.2.

This clause 20.3 continues in operation for so long as any obligations remain in connection with this Agreement.

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20.4. 20.4.1.

Conflict of Interest In this clause 20.4: Conflict means any matter, circumstance, interest or activity involving or affecting the Recipient, its Personnel or subcontractors which may or may appear to impair the ability of the Recipient to perform the Activity diligently and independently.

20.4.2.

The Recipient warrants that, to the best of its knowledge after making diligent inquiry, at the date of this Agreement no Conflict exists or is likely to arise in the performance of the Recipients obligations under the Agreement. If during the Term, a Conflict arises, the Recipient agrees to: a. b. c. notify the Department immediately; make full disclosure to the Department of all relevant information relating to the Conflict; and take any steps the Department reasonably requires to resolve or otherwise deal with that Conflict.

20.4.3.

20.5. 20.5.1.

Relationship of Parties The Recipient is not by virtue of this Agreement an officer, employee, partner or agent of the Department, nor does the Recipient have any power or authority to bind or represent the Department. The Recipient agrees: a. b. not to misrepresent its relationship with the Department; and not to engage in any misleading or deceptive conduct in relation to the Activity.

20.5.2.

20.6. 20.6.1.

Waiver 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. 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. Variation of Agreement Except for action the Department is expressly authorised to take elsewhere in this Agreement, no variation of this Agreement is binding unless it is agreed in writing and signed by both parties.

20.6.2.

20.7. 20.7.1.

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20.8. 20.8.1.

Assignment The Recipient cannot assign its obligations, and agrees not to assign its rights, under this Agreement without the Departments prior written approval. Survival The operation of clauses 2.5, 4.3, 4.5, 7, 10, 11, 12, 14, 15 and 20.2,and any other provision which expressly or by implication from its nature is intended to continue survive the expiration or earlier termination of this Agreement. Clauses 20.1 and 13 apply for the Term and for a period of 7 years from the date of expiration or earlier termination of the Agreement. Compliance with Legislation and Policies The Recipient agrees to comply with any provision of a statute or subordinate legislation of the Commonwealth, or of a State, Territory or local authority applicable to its performance of this Agreement. The Recipient agrees, in carrying out its obligations under this Agreement, to comply with any of the Departments policies as notified, referred or made available by the Department to the Recipient (including by reference to an internet site), including those listed in Schedule 4. Applicable Law and Jurisdiction This Agreement is to be construed in accordance with, and any matter related to it is to be governed by, the law of the Australian Capital Territory. The parties submit to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.

20.9. 20.9.1.

20.9.2.

20.10. 20.10.1.

20.10.2.

20.11. 20.11.1.

20.11.2.

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SCHEDULE 1 FUNDING AGREEMENT DETAILS

1.

Term

a) Commencement Date:

b) End Date: 2. 3.
Program Program Objectives

ENERGY EFFICIENCY INFORMATION GRANTS PROGRAM The Energy Efficiency Information Grants Program will assist industry associations and non profits provide practical, tailored energy efficiency information to SMEs and community organisations. The objective of the program is to empower SMEs and community organisations to make informed decisions about energy efficiency.

4. 5.

Activity Insurance

[EXAMPLE] workers compensation as required by law public liability insurance to a value of $10 million; and professional indemnity insurance to a value of $10 million per event.

6.

Subcontracting

The Service Provider may subcontract the performance of parts of the Services as follows: Part of the Services being subcontracted Subcontractor Additional conditions

7.

Recipient Confidential Information Specified Personnel Recipient Contact Department Assets

8. 9.

10. Contact 11.

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Recipient Owned Assets:


Description of Asset Cost Date of creation or acquisition Location of Asset

Third Party Owned Assets:


Description of Asset Asset Owner Cost Date of creation, acquisition or lease If there is a lease, the term of the lease. Location of Asset

Long Form Funding Agreement Page 34

SCHEDULE 2 MILESTONES AND FUNDING

1.

Milestones and Funding A. B. The total Funding provided by the Department is (insert amount) and is GST exclusive. The total anticipated Activity Generated Income is (insert amount) and is GST exclusive.

The Recipient will receive payment of Funding on satisfactory completion of the Milestones specified below:
Milestone and Deliverables Timeframe Funding payable on satisfactory completion

2.

Budget
Expenditure Item e.g. Assets Dept. Funding Activity Generated Income Recipient Contributions Other Contributions Total Cost

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SCHEDULE 3 CONTRIBUTIONS

1.

Other Contributions
Source of each Other Contribution Purpose of each Other Contribution Amount of each Other Contribution GST excl. Due date for each Other Contribution

2.

Recipient Contributions
Purpose of each Recipient Contribution Amount of each Recipient Contribution GST excl. Due date for each Recipient Contribution

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SCHEDULE 4 SPECIAL CONDITIONS

Long Form Funding Agreement Page 37

Executed as a deed This Agreement is made on the SIGNED SEALED AND DELIVERED for and on behalf of the COMMONWEALTH OF AUSTRALIA as represented by the Department of Climate Change and Energy Efficiency ABN 50 182 626 845 by: day ) ) ) month 20 year.

(Name of signatory)

(Signature)

(Date) In the presence of:

(Name of witness)

(Signature of witness)

SIGNED SEALED AND DELIVERED for and on behalf of [Service Provider] ABN [Service Provider ABN or ACN] by:

) )

(Name of signatory)

(Signature)

(Date)

In the presence of:

(Name of witness)

(Signature of witness)

Long Form Funding Agreement Page 38

OR EXECUTED by [Service Provider] ABN [Service Provider ABN or ACN] in accordance with the requirements of section 127 of the Corporations Act 2001 (Cth) by: ) ) )

(Name of Director)

(Signature)

(Date)

and by:

(Name of Director/Secretary)

(Signature)

(Date)

Long Form Funding Agreement Page 39