Regional Queensland


Investment Incentives


Scheme Agreement


 


State of Queensland ("State")


The Grantee stated in the Reference Schedule ("Grantee")


 


eco-Kinetics Pty Ltd


(ABN 56 123 950 256)


 




    	 



    	 



    

 


Contents


 


	1	Consideration	 
	 	 	 
	2	Agreement period	 
	 	 	 
	3	Financial Assistance	 
	 	 	 
	4	Pre-conditions to the provision of Financial Assistance	 
	4.1	Pre-conditions	 
	4.2	Request for further information	 
	4.3	State not obligated until condition satisfied	 
	4.4	Waiver	 
	4.5	Non-satisfaction and termination	 
	4.6	Effect of termination	 
	 	 	 
	5	Grantee's obligations	 
	5.1	General obligations	 
	5.2	Authorised Officers	 
	5.3	Variations to levels of Capital Expenditure and Eligible Employees	 
	 	 	 
	6	Contract Performance Guarantee	 
	6.1	Provision of Contract Performance Guarantee	 
	6.2	Duration of Contract Performance Guarantee	 
	6.3	Additional Contract Performance Guarantee	 
	6.4	Replacement Contract Performance Guarantee	 
	6.5	Recourse to the Contract Performance Guarantee	 
	6.6	Release of Contract Performance Guarantee	 
	6.7	Contract Performance Guarantee Notice	 
	 	 	 
	7	Provision of Financial Assistance	 
	7.1	Financial Assistance claim	 
	7.2	Reimbursement of Project expenses from the Project	 
	 	Commencement Date until the Operations
    Commencement Date	 
	7.3	Financial Assistance Claim Form	 
	7.4	Requests for information	 
	7.5	Provision of Financial Assistance	 
	7.6	Return of Claim Form	 
	7.7	No interest or liability	 
	7.8	No claim	 
	 	 	 
	8	Records and Reports	 
	8.1	Maintenance of Records	 
	8.2	Access and inspection of Records	 



 






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	8.3	Periodic Report	 
	8.4	Half-yearly Report	 
	8.5	Yearly Report	 
	8.6	
        Reporting obligations if a Suspension Event or Default
Event occurs or is likely to occur
	 
	8.7	Audit	 
	8.8	Certification	 
	8.9	Request further reports	 
	8.10	Personal information	 
	8.11	Continuing obligations	 
	 	 	 
	9	Suspension and termination	 
	9.1	Suspension Event	 
	9.2	Written notice to suspend	 
	9.3	Suspension	 
	9.4	Grantee to remedy breach	 
	9.5	Effect of suspension notice	 
	9.6	Right to terminate	 
	9.7	Notice	 
	9.8	Consequences of termination	 
	 	 	 
	10	Representations and warranties	 
	10.1	Grantee's representations and warranties	 
	10.2	No authority	 
	10.3	Trustee warranties	 
	10.4	Continuing obligation	 
	 	 	 
	11	Confidentiality	 
	11.1	Confidential information	 
	11.2	Disclosure of Confidential Information	 
	11.3	Disclosure by Grantee	 
	11.4	Excluded Information	 
	11.5	Termination	 
	11.6	Announcements or releases	 
	11.7	Disclosure by the State	 
	11.8	Acknowledgement of Assistance	 
	 	 	 
	12	GST	 
	12.1	Definitions	 
	12.2	Consideration does not include GST	 
	12.3	Recovery of GST	 
	12.4	Time of payment	 
	12.5	Adjustment of additional amount	 
	12.6	Reimbursement	 
	12.7	Registration of GST	 
	12.8	Tax Equivalents Regime	 
	 	 	 
	13	No undisclosed principals or undisclosed trusts •	 


 




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	14	Disclaimer, Release and Indemnity	 
	14.1	Disclaimer	 
	14.2	Release and Indemnity	 
	 	 	 
	15	No partnerships	 
	 	 	 
	16	Communication of breaches	 
	 	 	 
	17	Notices	 
	17.1	Form	 
	17.2	Delivery	 
	17.3	When effective	 
	17.4	Receipt - post	 
	17.5	Receipt  - fax	 
	17.6	Receipt  - general	 
	 	 	 
	18	Assignment	 
	18.1	Assignment by the Grantee	 
	18.2	Assignment by the State	 
	18.3	Other State Government Departments	 
	 	 	 
	19	Severability	 
	 	 	 
	20	Entire agreement	 
	 	 	 
	21	Dispute resolution	 
	21.1	Reasonable endeavours to settle	 
	21.2	Mediation	 
	21.3	Appointment of mediator	 
	 	 	 
	22	 	 
	22.1	Discretion in exercising rights	 
	22.2	Partial exercising of rights	 
	22.3	No liability for loss	 
	22.4	Approvals and consents	 
	22.5	Remedies cumulative	 
	22.6	Rights and obligations are unaffected	 
	22.7	Variation and waiver	 
	22.8	Indemnities	 
	22.9	Other continuing obligations	 
	22.10	Further steps	 
	22.11	Prompt performance	 
	22.12	Set-off	 
	22.13	Construction	 
	22.14	Costs	 
	22.15	Stamp duty	 
	22.16	Change in law	 


 




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	22.17	Counterparts	 
	 	 	 
	23	Governing law	 
	23.1	Governing law	 
	23.2	Jurisdiction	 
	23.3	Serving documents	 
	 	 	 
	24	Interpretation	 
	24.1	Definitions	 
	24.2	References to certain general terms	 
	24.3	Headings	 
	24.4	Inconsistency	 
	 	 	 
	Schedule 1	Reference Schedule	 
	 	 	 
	Schedule 2	Project Development Program	 
	 	 	 
	Schedule 3	Cash Grant Claim Form	 
	 	 	 
	Schedule 4	Payroll Tax Reimbursement Claim Form	 


 




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Interpretation — definitions and interpretation
rules are at the end of the General terms


 


	Parties	State and Grantee
	 	 	 
	State	Name	State of Queensland through the Department of Employment, Economic Development and Innovation (Employment Industry Development and Innovation)
	 	 	 
	 	ABN	24 830 236 408
	 	Address	PO Box 15168, CITY EAST, Queensland 4002
	 	Fax	3224 8410
	 	Attention	The Manager, Agreement Advisory, Commercial Advisory Services
	 	 	 
	Grantee	Name	See Reference Schedule
	 	ABN	See Reference Schedule
	 	Address	See Reference Schedule
	 	Fax	See Reference Schedule
	 	Attention	See Reference Schedule
	 	 	 
	 	 	
	Recitals	A	
        The State has established
the Scheme with the objective of encouraging significant business development, and investment, in Queensland through the provision
of financial assistance for the establishment, expansion or relocation of businesses in Queensland.

	 	 	 
	 	B	The State has received an Application under the Scheme from the Grantee for financial assistance relating to the Project.
	 	 	 
	 	C	The State has agreed to provide Financial Assistance to the Grantee for the Project, on the terms of this Agreement. 
	 	 	 
	Date of Agreement	 	
        The date of this Agreement is the date the last Party
signs this Agreement, as set out on the Signing Page



 




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General Terms


		1	Consideration



 


This Agreement is
entered into in consideration of the Parties incurring obligations and giving rights under this Agreement and for other valuable
consideration.


 


		2	Agreement period



 


This Agreement commences on the date of this Agreement and ends
on the End Date, unless terminated earlier under this Agreement.


 


		3	Financial Assistance



 


The State agrees to provide Financial Assistance to the Grantee,
subject to the terms of this Agreement.


 


		4.	Pre-conditions to the provision
of Financial Assistance



 


		4.1	Preconditions



 


It is a pre-condition of this agreement that the Grantee must
locate the Project in Regional Queensland by the Operations Commencement Date.


 


Within 20 Business Days following the Operations Commencement
Date, the Grantee must provide to the State:


 


		a)	the details (including names and contact details) and
specimen signatures of the Grantee's Authorised Officers;



 


		b)	the Ancillary Material (certified by an Authorised Officer
of the Grantee as accurate and up to date) requested by the State;



 


		c)	evidence (certified by an Authorised Officer) that:



 


		i.	the Project is feasible;



 


		ii.	the Grantee has entered or will enter into agreements
to acquire, lease or otherwise obtain rights to use any property necessary to implement and carry on the Project;



 


		iii.	the Project is adequately insured by way of certificate's
of currency; and



 


		iv.	the Grantee has sufficient finance or other funding necessary
to implement and carry on the Project;



 




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		d)	details (excluding names) of the Employees and Excluded
Employees, at the date of this Agreement, including their commencement dates, duties and titles, status (permanent, temporary
or casual), hours of work and salaries, wages or fees per pay period (certified by an Authorised Officer); and



 


		e)	any other document or information stated in the Other
Pre-conditions or evidence that the Other Pre-conditions have been satisfied (as the case may be)



 


		4.2	Request for further information



 


The State may at any time request further
information from the Grantee for the purpose of assisting the State in satisfying itself of the matters referred to in clause 4.1(c),
(d) and (e). The Grantee must comply with the State's request:


 


		a)	within 15 Business Days after the request for further
information is made by the State; or



 


		b)	within 40 Business Days following the Operations Commencement
Date,



 


whichever is the earlier.


 


		4.3	State not obligated until condition satisfied



 


The obligations of the State under this Agreement other
than the obligations contained in clauses 11 and 22.14, are conditional upon the State being completely satisfied of the
matters referred to in clause 4.1(c), (d) and (e), in its absolute discretion within 50 Business Days following the
Operations Commencement Date.


 


		4.4	Waiver



 


The condition contained in clause 4.3 is
for the benefit of the State. The State may at any time waive the condition by written notice to the Grantee.


 


		4.5	Non-satisfaction and termination



 


If the State gives written notice to the
Grantee that the condition in clause 4.3 is not satisfied within 50 Business Days following the Operations Commencement Date, then
the State has the right to terminate this Agreement by notice in writing at any time, with the termination becoming effective at
5.00pm on the date specified by the State.


 


		4.6	Effect of termination



 


If this Agreement is terminated under clause 4.5 then, in addition
to any other rights, powers or remedies provided by law:


 


		a)	each Party will be released from its obligations to further
perform this Agreement, except the obligation of confidentiality under clause 11; and



 


		b)	each Party will retain its rights against the other in
respect of any past breach of this Agreement.



 




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		5	Grantee's obligations



 


		5.1	General obligations



 


During the Term, the Grantee must:


 


		a)	promptly and diligently carry out the Project, in a manner
satisfactory to the State;



 


		b)	use due care and skill in carrying out the Project;



 


		c)	carry out the Project in accordance with the Project
Development Program;subject to clause 5.3,



 


		d)	satisfy each of the Performance Criteria by the relevant
Milestone Date;



 


		e)	ensure that each of the Performance Criteria, once satisfied
continue to be satisfied in accordance with the Project Development Program (for example, if a minimum number of Eligible Employees
must be employed by the Grantee by a Milestone Date, that minimum number must be maintained until the next Milestone Date or the
Term of this Agreement, as the case may be) subject to any subsequent Performance Criteria;



 


		f)	at all times comply with all relevant laws, Authorisations,
Notices, requirements and orders of any Government Agency;



 


		g)	throughout the Term of this Agreement, effect and maintain
the insurance policies identified in Schedule 1 – Reference Schedule of this Agreement;



 


		h)	provide to the State, within 30 days of the date of this
Agreement, copies of the insurance policies required by clause 5.1(g) and evidence that the policies are current;



 


		i)	provide to the State, within 30 days of a written request
by the State to do so, copies of the certificates of currency for the insurance policies referred to in clause 5.1(g);



 


		j)	ensure that the Key Personnel are employed or engaged,
and continue to be employed or engaged, by the Grantee in relation to the Project;



 


		k)	appoint at least two Authorised Officers at all times;



 


		l)	notify the State of any changes to the Authorised Officers
(and provide to the State specimen signatures of all current Authorised Officers) within 3 Business Days of any changes;



 


		m)	maintain the Project in Queensland at the Site to a level
satisfactory to the State;



 


		n)	immediately notify the State in writing when it becomes
aware of (and subject to it not being prohibited from doing so by any law) any of the following:



 


		i.	any actual or proposed material change to the Project:



 




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		ii.	any actual or proposed material change which affects
the Grantee or any Group Entity (including, without limitation, any actual or proposed change in Control of the Grantee or any
Group Entity or any change in Key Personnel);



 


		iii.	the occurrence or likely occurrence of any Suspension
Event or Default Event; and



 


		iv.	any matters that relate to, or may be expected to adversely
affect, the good reputation, character and standing of the Grantee or any Group Entity, any director, senior officer or Key Personnel
of the Grantee, or Group Entity which may be involved in the Project, including matters relating to their acting in breach of
their obligations under any law in the conduct of business or in any role as an officer of a company, including (without limitation)
their obligations pursuant to the Corporations Act; and



 


		o)	comply with any Other Special Conditions



 


		5.2	Authorised Officers



 


The Grantee agrees that:


 


		a)	any of the Authorised Officers of the Grantee are authorised
by the Grantee to sign any document contemplated or required
to be signed on behalf of the Grantee for the purposes of this Agreement; and




 


		b)	the actions of the Authorised Officers of the Grantee
are binding on the Grantee.



 


		5.3	Variations to levels of Capital Expenditure and Eligible
Employees



 


The Grantee will be taken to have satisfied
any Performance Criteria relating to the minimum number of Employees or Eligible Employees (as the case may be) and the minimum
Capital Expenditure to be spent by the Grantee, by the relevant Milestone Date if, at the Milestone Date, the Grantee's actual:


 


		a)	number of Employees or Eligible Employees (as the case
may be) employed by the Grantee; and



 


		b)	Capital Expenditure,



 


are each within 15% of the levels or amounts required under
any of the Performance Criteria.


 




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		6	Contract Performance Guarantee



 


		6.1	Provision of Contract Performance Guarantee



 


If the Financial Assistance includes a
Cash Grant, the Grantee must provide to the State at the time the Grantee lodges the first Claim Form pursuant to clause 7.3 the
Contract Performance Guarantee in favour of the State.


 


		6.2	Duration of Contract Performance Guarantee



 


The Contract Performance Guarantee provided
by the Grantee in favour of the State in accordance with clause 6.1 must remain in force at all times and until the later of:


 


		a)	the termination of this Agreement; and



 


		b)	the completion to the satisfaction of the State of all
obligations of the Grantee required to be undertaken by the Grantee in relation to the Project under this Agreement (which have
arisen before termination of this Agreement or survive the termination of this Agreement, including, without limitation, the obligations
of the Grantee to provide reports to the State under clause 8).



 


		6.3	Additional Contract Performance Guarantee



 


If, any Cash Grant in excess of the amount of the Contract Performance
Guarantee held at any time by the State is able to be claimed by the Grantee, the State will request additional Contract Performance
Guarantee in favour of the State for the amount of that difference. The Grantee must provide to the State, any additional Contract
Performance Guarantee requested by the State by the earlier of the date:


 


		a)	that a claim is made under clause 7.3; and



 


		b)	specified by any written notice by the State to the Grantee.



  


		6.4	Replacement Contract Performance Guarantee



 


If a Contract Performance Guarantee provided by the Grantee
to the State was given by a person who has ceased to be an Approved Security Provider, the Grantee must, within 14 days of that
person ceasing to be an Approved Security Provider, provide to the State a replacement Contract Performance Guarantee in favour
of the State for an amount not less than the amount of the Contract Performance Guarantee provided by the Grantee to the State
at the date that the person ceased to be an Approved Security Provider.


 


		6.5	Recourse to the Contract Performance Guarantee



 





The State will have recourse to the Contract Performance Guarantee
provided by the Grantee, without notice to the Grantee, to recover any amounts owing by the Grantee to the State under this Agreement.
This clause survives the termination of this agreement.


 






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		6.6	Release of Contract Performance Guarantee



 


If the Grantee has complied with all its
obligations under this Agreement, the State will release the Contract Performance Guarantee provided by the Grantee to the State
under this Agreement, on the later of the dates in clause 6.2.


 


		6.7	Contract Performance Guarantee Notice



 


Notwithstanding any term of this Agreement, nor the amount of
the Cash Grant actually claimed by the Grantee, the State may require the Grantee lust to provide a Contract Performance Guarantee
by a date specified in a written notice by the State. The Grantee must comply with the State's notice.


  


		7	Provision of Financial Assistance



 


		7.1	Financial Assistance claim



 


Within one Month of the end of each Quarter during the Term,
the Grantee must submit a claim to the State for eligible reimbursement of:


 





		a)	a Project expense paid by the Grantee during that
Quarter for an Approved Purpose, up to, in aggregate over the Term, the Cash Grant; and



 


		b)	any payroll tax paid in Queensland by the Grantee
to the State Government under the Pay-roll Tax Act 1971 (Old) in respect of the Employees or Eligible Employees (as the case may
be) during that Quarter, subject to the Payroll Tax Terms.



 


		7.2	Reimbursement of Project expenses from the ProjectCommencement
Date until the Operations Commencement Date



 


If the Financial Assistance includes a Cash Grant the Grantee
may, along with the first claim submitted under clause 7.1, submit a claim to the State for reimbursement of any Project expense
paid by the Grantee for an Approved Purpose during the period from the Project Commencement Date until the Operations Commencement
Date.


 


		7.3	Financial Assistance Claim Form



 


A claim for Financial Assistance under clause 7.1 or 7.2 must
be:


 


		a)	in the form of the relevant Claim Form;



		b)	be complete and accurate; and



		c)	be accompanied by:



 


		i.	 	evidence of the relevant expenditure (including, without
limitation, invoices and receipts) claimed under the Claim Form;



 




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		ii.	 	any other relevant Ancillary Material (certified by
an Authorised Officer of the Grantee as accurate and up to date) in support of the claim for Financial Assistance under the Claim
Form;



 


		iii.	 	if applicable, a statutory declaration by an Authorised
Officer of the Grantee confirming that each Employee or Eligible Employee (as the case may be) counted for the purpose of achieving
a Performance Criterion and each Employee for whom a reimbursement of Queensland payroll tax is sought, is an Employee or Eligible
Employee (as the case may be);



 


		iv.	 	a tax invoice in accordance with the GST Act; and



 


		v.	 	if the claim for Financial Assistance relates to all
or part of a Cash Grant, a Contract Performance Guarantee in accordance with clause 6.



 


		7.4	Requests for information



 


The State may, at any time during the Term, in its absolute
discretion request the Grantee to:


 


		a)	meet with the State, at a place nominated by the State,
to discuss and agree on the Employee Reporting Arrangement;



 


		b)	provide to the State any information (in addition
to the information provided under clause 7.3) to satisfy the State that the amounts claimed in any Claim Form have been properly
incurred and paid by the Grantee in relation to the Project; and



 


		c)	provide to the State evidence to satisfy the State
that:



 


		i.	 	the Project continues to be feasible;



 


		ii.	 	the Grantee continues to hold the necessary rights
(whether by acquisition, lease or otherwise) to use any property to carry on the Project; and



 


		iii.	 	the Grantee continues to have sufficient finance or
other funding necessary to carry on the Project.



 


The Grantee must comply with any request under this clause 7.4
within 5 Business Days of the State's request.


 


		7.5	Provision of Financial Assistance



 


Subject to clause 4, the State will provide to the Grantee the
relevant Financial Assistance claimed under the Claim Form by the Payment Date if the State is satisfied that:


 


		a)	the Grantee has properly completed and signed the
Claim Form;



 




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		b)	the claim for Financial Assistance under the Claim
Form is valid and payable by the State under this Agreement;



 


		c)	the Grantee has complied with clauses 7.3 and 7.4,
and to the extent that a meeting or information is requested by the State pursuant to clause 7.4, an Employee Reporting Arrangement
has been agreed and the State is completely satisfied of the matters referred to in clause 7.4(b) and (c);



 


		d)	in the case of any Milestone Dates which occur before
the Payment Date, the Grantee has satisfied each of the Performance Criteria by the relevant Milestone Date and continues to maintain
or satisfy that Performance Criteria at the Payment Date;



 


		e)	in the case of a Cash Grant, the claim is for an Approved
Purpose;



 


		f)	no Suspension Event has occurred and is continuing
at the Payment Date;



 


		g)	no Default Event has occurred and is continuing at the Payment Date;




 


		h)	the State is satisfied as to the continuing accuracy
and adequacy of all warranties and representations made under this Agreement by the Grantee at the Payment Date;



 


		i)	the Grantee has complied with clause 6; and



 


		j)	the Grantee has delivered all reports required under clause
8 and there are no outstanding or undelivered reports at
the Payment Date.




 


		7.6	Return of Claim Form



 


The State reserves the right, in its absolute discretion, to
return the Claim Form to the Grantee, (but is not obliged to do so) if the State is not satisfied of any of the matters listed
in clause 7.5.


 


		7.7	No interest or liability



 


If the State does not (for any reason) provide all or part of
the Financial Assistance by the Payment Date, the State will not be liable to the Grantee for:


 


		a)	interest on the amount of any Financial Assistance
to be provided by the State to the Grantee under this Agreement; and



 


		b)	any loss, liability or damages (including, without
limitation, loss of profits or consequential foss) incurred by the Grantee as a consequence of the delay.



 


		7.8	No claim



 


The Grantee:


 




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		a.	must not make a claim for Financial Assistance unless
it is entitled to under clause 7.1 or 7.2;



 


		b.	must not make a claim for any Financial Assistance
that will, in aggregate with previous properly made claims, exceed the relevant maximum aggregate amount set out in the Reference
Schedule for that Financial Assistance (for example, the claims for reimbursement of expenses for Approved Purposes during the
Term, in aggregate, must not exceed the Cash Grant);



 


		c.	is not entitled to substitute or replace the whole
or any part of the amount for one category of Financial Assistance with the whole or any part of the amount for another category
of Financial Assistance; and



 


		d.	acknowledges that the State is not obliged to provide
all or any part of the Financial Assistance or consider any Claim Form unless the Grantee complies with clauses 7.3 and 7.4 and
the State is satisfied in its absolute discretion of the matters in clause 7.5.



 


		8	Records and Reports



 


		8.1	Maintenance of Records



 


The Grantee must keep and maintain, to the State's satisfaction,
complete and accurate Records.


 


		8.2	Access and inspection of Records



 


Upon three
Business Days' notice, the Grantee must allow the State, its Employees, agents and contractors access to the Facility or any other
premises of the Grantee and provide all reasonable and necessary assistance to enable those persons to:


 


		a.	inspect and take copies of any Records or any other
Records which, in the State's opinion, are relevant to the Project;



 


		b.	assess the activities of the Project, including, without
limitation, the effectiveness of the Scheme; and



 


		c.	verify, substantiate or audit any claim for Financial
Assistance and Performance Criteria under this Agreement.



 


		8.3	Periodic Report



 


Within 30 days of each Reporting Date (and,
if applicable, within 30 days of the date of the State's request under clause 8.9), the Grantee must provide a report to the State,
in a form satisfactory to the State, which includes the following:


 


		a)	the progress of the Project;



 




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		b)	details (excluding names) of the Employees and Eligible
Employees (as the case may be), including their commencement dates, duties and titles, status (permanent, temporary or casual),
hours of work and salaries, wages or fees per pay period) in accordance with the Employee Reporting Arrangement;



 


		c)	all expenditure (including expenditure for an Approved
Purpose) by the Grantee in relation to the Project;



 


		d)	if a Milestone Date falls within the relevant reporting
period, evidence of the achievement of the relevant Performance Criteria for that Milestone Date;



 


		e)	any adverse matter which may affect the Project, the
Grantee or any Group Entity (including information in respect to investigations by Government Agencies and any legal proceedings
threatened or commenced by or against the Grantee);



 


		f)	bank financing limits, cash reserves, cash flows and
any other information relevant to the financial position and liabilities of the Grantee or the Project (including, without limitation,
copies of the latest Financial Statements); and



 


		g)	any other information reasonably requested by the
State from time to time, since the date of this Agreement or the last preceding Reporting Date (as applicable) up to and including
the relevant Reporting Date.



 


		8.4	Half-yearly Report



 


Within 45 days after each 30 June and 31 December during the
Term, the Grantee must provide the Financial Statements to the State for the previous six-Month period ending on that 30 June or
31 December (as the case may be). The Financial Statements must be signed by the directors or an Authorised Officer of the Grantee.


 


		8.5	Yearly Report



 


Within 120 days after each 30 June during
the Term, the Grantee must provide the Financial Statements to the State for the previous 12 month period ending on that 30 June.
The Financial Statements must be signed by the directors or an Authorised Officer of the Grantee and, if requested by the State,
must be audited by an independent auditor acceptable to the State.


 


		8.6	Reporting obligations if a Suspension Event or
Default Event occurs or is likely to occur



 


If a Suspension Event, or a Default Event, occurs or is likely
to occur, the Grantee must provide a Report (for the period between the date of this Agreement or the last preceding Reporting
Date (as applicable) and the date or likely date of the Suspension Event or Default Event, (as applicable)) to the State by the
earlier of:


 


		a)	7 days after the date of the State's written request;
and



 


		b)	21 days after the Suspension Event or Default Event
first occurs or is likely to occur (as the case may be).



 




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		8.7	Audit



 


If requested by the State, the State and the Grantee must negotiate
in good faith and agree upon an auditable mechanism for determining, to the State's satisfaction, compliance by the Grantee with
the conditions in this Agreement relating to Eligible Employee or Employee (as the case may be) numbers.


 


		8.8	Certification



 


All reports given to the State under this clause 8 must be certified
as correct by an Authorised Officer of the Grantee.


 


		8.9	Request further reports



 


At any time, the State may request the Grantee to provide:


 


		a)	further information in relation to any Report given
under this clause 8; or



 


		b)	a Report for a specified period.



 


The Grantee must comply with the State's request within 30 days
of the date of request,


 


		8.10	Personal information



 


For the avoidance of any doubt, nothing in this clause 8 requires
the Grantee to disclose to the State any personal information about an individual which is capable of identifying an individual
in breach of any applicable privacy legislation.


 


		8.11	Continuing obligations



 


Notwithstanding the end of this Agreement (for whatever reason),
the Grantee must (within the relevant specified time):


 


		a.	provide to the State any reports or information under
clause B which are outstanding at the date this Agreement ends;



 


		b.	comply with any obligation to provide reports or information
under clause 8, the requirement of which is triggered under clause 8 before this Agreement ends; and



 


		c.	upon request by the State, provide to the State access
and assistance under clause 8.2 for at least six Months after the date this Agreement ends.



 


		9	Suspension and termination



 


		9.1	Suspension Event



 


The State may, without prejudice to
any of the State's rights under this Agreement or at law (including, without limitation, its right to terminate this
Agreement under clause 9.6), suspend the provision of all or any part of the Financial Assistance if a Suspension Event
occurs, until the Suspension Event is remedied.


 




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		9.2	Written notice to Suspend



 


The State must notify the Grantee in writing of the Suspension
Event and the grounds for the suspension ("Suspension Notice").


 


		9.3	Suspension



 


Clause 9.1 applies notwithstanding that:


 


		a)	the Grantee has provided the report to the State under
clause 8.6 (and the State is satisfied of the contents of that report); or



 


		b)	that the Grantee has lodged a Claim Form, or is entitled
to lodge a Claim Form, before the Suspension Event occurred or during the suspension period, relating to any period during the
Term.



 


		9.4	Grantee to remedy breach



 


The Grantee must remedy the Suspension
Event stated in the Suspension Notice within 14 days of receiving the Suspension Notice from the State.


 


		9.5	Effect of suspension notice



 


		a)	If the State gives a Suspension Notice to the Grantee
under clause 9.2:



 


		i.	the Grantee must continue to comply with its obligations
under this Agreement; and



 


		ii.	the Suspension Notice continues until either:



 


		A.	the Grantee has remedied the Suspension Event stated
in the Suspension Notice to the satisfaction of the State and the State gives a written notice of withdrawal of the Suspension
Notice to the Grantee, evidencing that the State is satisfied the Suspension Event has been remedied; or



 


		B.	the Grantee has not remedied the Suspension Event
as stated in the Suspension Notice to the satisfaction of the State and the State terminates this Agreement in accordance with
clause 9.6.



 


		9.6	Right to terminate



 


The State has the right to terminate this Agreement by notice
in writing to the Grantee if:


 


		a.	the Grantee (or any Group Entity) becomes Insolvent;



 






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		b.	the Grantee fails to satisfy or maintain any Performance
Criteria as required by the Project Development Program and by the Milestone Dates;



 


		c.	the Grantee fails to allow access or inspections as
required under clause 8;



 


		d.	the Grantee (or any Group Entity)



 


		i.	has given or gives any warranty, representation, certification
or statutory declaration that is false or misleading in a material way; or



 


		ii.	knowingly provides any other information that is false
or misleading in a material way;



 


		e.	the Grantee otherwise commits a material breach of
this Agreement and:



 


		i.	the breach is not capable of being cured; or



 


		ii.	the breach is capable of being cured and the Grantee
fails to cure the breach within 10 Business Days of being notified in writing of the breach by the State;



 


		f.	the Grantee ceases to carry on its business or a material
part of it, or threatens to do either of those things except to reconstruct or amalgamate while solvent, on terms approved by
the State in writing;



 


		g.	the Grantee assigns, novates or otherwise deals with
its rights and obligation under this Agreement or allows any interest in them to arise or be varied (including, without limitation,
a change in Control of the Grantee), without the prior written consent of the State;



 


		h.	the Grantee (or any Group Entity):



 


		i.	being a corporation, ceases to be incorporated; or



 


		ii.	being a trustee:



 


		A.	ceases to be the trustee of the relevant trust; or



 


		B.	has a change in the ultimate beneficial ownership
of the assets of the relevant trust in a manner or to the extent that the State considers material, without the prior written
consent of the State;



 


		i.	the Grantee (or any Group Entity) sells or enters
into negotiations to sell some or all of its assets which, in the State's reasonable opinion, is likely to result in the Grantee
failing to fulfil its obligations under this Agreement;



 


		j.	the Grantee (or any Group Entity) suffer a material
adverse change in their financial position or a change in the Key Personnel, which in the reasonable opinion of the State, affects
in a material way the Grantee's ability to fulfil its obligations under this Agreement;



 




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		k.	the Grantee (or any Group Entity) suspends the implementation
or the completion of the Project, varies or reduces the operation of the Project or relocates or proposes to relocate the Project
from the Site, in a manner or to the extent that the State considers is material, without the prior written consent of the State;



 


		l.	the Grantee fails to make full disclosure to the State
in accordance with clause 5.1(m)(iv) and clause 10.1(i);



 


		m.	a Suspension Event set out in a suspension notice
issued pursuant to clause 9.2 is not remedied within 14 days of receiving the notice from the State;



 


		n.	or any Other Default Event occurs



 


		9.7	Notice



 


A notice given under clause 9.6 must specify
the event or events in relation to which the notice is given. For the avoidance of any doubt, the State may issue a notice pursuant
to clause 9.6, before, after or notwithstanding, a suspension notice being issued pursuant to clause 9.2.


 


		9.8	Consequences of termination



 


If the State terminates this Agreement under clause 9.6:


 


		a)	the State may, in the notice of termination or in
a further notice given at any time, require the Grantee to repay the whole or any part of the Financial Assistance provided to
the Grantee under this Agreement, by the time stated in the notice. The Grantee agrees that such sum will be a debt due and recoverable
by the State;



 


		b)	the State is not obliged to provide any Financial
Assistance to the Grantee under this Agreement (even if the Grantee has submitted, or has a right to submit a Claim Form to the
State or otherwise has a right to make a claim for Financial Assistance, before the Default Event); and



 


		c)	the State will have recourse to the Contract Performance
Guarantee (if applicable) in accordance with clause 6.5.



 


		10	Representations and warranties



 


		10.1	Grantee's representations and warranties



 


The Grantee represents and warrants to the
State that:


 






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		a)	it has full power and authority to enter into and perform
its obligations under this Agreement;






 


		b)	it has taken all necessary action to authorise the
execution, delivery and the performance of the Agreement;



 


		c)	this Agreement constitutes legal, valid and binding
obligations, enforceable in accordance with its terms;



 


		d)	the information contained in the Application and any
other information provided by the Grantee to the State in support of the Application is accurate;



 


		e)	all Ancillary Material provided under or in connection
with this Agreement at any time is accurate and up to date;



 


		f)	it does not have any interests or obligations that
conflict with its interests and obligations under this Agreement;



 


		g)	it has entered into this Agreement and decided to proceed
with the Project, on its own accord



 


		h)	in entering into this Agreement it has not relied on
or been influenced by any representations or warranties by the State Government or by any person associated with the State Government
about



 


		i.	the subject matter of this Agreement;



 


		ii.	the suitability or otherwise of the Site;



 


		iii.	the Project's feasibility or business prospects;



 


		iv.	the possibility of any other financial assistance or
arrangements between the Grantee and the State Government; or



 


		v.	any other matter, except as expressly set out in this
Agreement; and



 


		i)	it has made full disclosure to the State of all matters
that relate to, or may be expected to adversely affect, the good reputation, character and standing of the Grantee and any Group
Entity, any director, senior officer or Key Personnel of the Grantee, or Group Entity which may be involved in the Project, including
matters relating to their acting in breach of their obligations under any law in the conduct of business or in any role as an
officer of a company, including (without limitation) their obligations pursuant to the Corporations Act.



 


		10.2	No authority



 


The Grantee acknowledges that the State has not authorised any
person to make any representation referred to in clause 10.1(h).


 






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		10.3	Trustee warranties



 


If the Grantee enters into this Agreement as a trustee, the
Grantee:


 


		a)	is liable both personally and in its capacity as trustee;
and



 


		b)	represents and warrants that:



 


		i.	it is the sole trustee of the trust;



 


		ii.	it is not in breach of trust;



 


		iii.	it has the right to be fully indemnified out of the
trust assets for obligations incurred under this Agreement before the claims of beneficiaries; and



 


		iv.	this Agreement is for the benefit of the trust.



 


		10.4	Continuing obligation



 


The warranties and representations given under clauses 10.1
and 10.3 are continuing obligations for the Term.


 


		11	Confidentiality



 


		11.1	Confidential information



 


The State will treat all commercial intelligence and other information
(including data required to be provided under the terms of this Agreement) arising from or relating to the Project as confidential.


 


		11.2	Disclosure of Confidential information



 


The Grantee will not disclose the terms of this Agreement to
any person except:


 


		a)	Employees, accountants, auditors insurers financial
advisers or legal advisers (including those of any Group Entity) requiring the information for the purposes of this Agreement
(and who accept or owe a duty of confidence in relation to the information);



 


		b)	with the prior written consent of the State;



 


		c)	if Grantee is required to do so by law or by a stock
exchange; or



 


		d)	if Grantee is required to do so in connection with
legal proceedings relating to this Agreement.



 






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		11.3	Disclosure by Grantee



 


The Grantee must use all reasonable endeavours to ensure that
persons receiving information about the terms of this Agreement from it do not disclose the information except in the circumstances
permitted in clause 11.2.


 


		11.4	Excluded Information



 


Clauses 11.1, 11.2 and 11.3 do not apply to information that:


 


		a)	is in or becomes part of the public domain otherwise
than through breach of this Agreement or an obligation of confidence owed to the disclosing Party;



 


		b)	the receiving Party can prove by contemporaneous written
documentation was already known to it at the time of disclosure by receiving Party or its Representatives (unless such knowledge
arose from disclosure of information in breach of an obligation of confidentiality); or



 


		c)	the receiving Party acquires from a source other than
the disclosing Party where such source is entitled to disclose it.



 


		11.5	Termination



 


This clause 11 will survive termination (for whatever reason)
of this Agreement.


 


		11.6	Announcements or releases



 


The
Grantee may not make press or other announcements or releases Agreement
without the prior written approval of the State as to the form and manner of the announcement or release unless and to the extent
that the announcement or release is required to be made by the Grantee by law.


 


		11.7	Disclosure by the State



 


The State reserves the right to disclose to any person the name
of the Grantee, details of the Financial Assistance and the Project, including, without limitation, for the purposes of complying
with any law or complying with or meeting applicable standards for accountability of public money.


 


		11.8	Acknowledgement of Assistance



 


The Grantee must, in making any public
statement or media release about the Project or the Project Development Program (whether during the Term of this Agreement or after
its expiry) include an acknowledgement of the Financial Assistance the Grantee has received from the State


 






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		12	GST



 


		12.1	Definitions



 


Words in this clause 12 have the same meaning as in the GST
Act unless the context makes it clear that a different meaning is intended.


 


		12.2	Consideration does not include GST



 


The consideration specified in this Agreement does not include
any amount for GST.


 


		12.3	Recovery of GST



 


If a supply under this Agreement is subject to GST, the recipient
must pay to the supplier an additional amount equal to the Amount of the Consideration multiplied by the applicable GST rate.


 


		12.4	Time of payment



 


The additional amount is payable at the same time as the consideration
for the supply is payable or is to be provided. However, the additional amount need not be paid until the supplier gives the recipient
a tax invoice.


 


		12.5	Adjustment of additional amount



 


If the additional amount differs from the amount of GST payable
by the supplier, the Parties must adjust the additional amount.


 


		12.6	Reimbursement



 


If a Party is entitled to be reimbursed or indemnified under
this Agreement, the amount to be reimbursed or indemnified does not include any amount for GST for which the Party is entitled
to an input tax credit (or would have been entitled to an input tax credit if that Party had done all things necessary to obtain
an input tax credit).


 


		12.7	Registration of GST



 


The State may withhold the provision of any Financial Assistance
under this Agreement until:


 


		a)	the Grantee has given the State evidence of the Grantee's GST
registration and Australian Business Number; and







 


		b)	the Parties have satisfied any other condition required
by law to be satisfied before the State can provide the Financial Assistance or to ensure that the State does not become liable
for any taxes or charges for which the Grantee is primarily liable.



 


		12.8	Tax Equivalents Regime



 





		a)	Clause 12.8(b) applies if a Party is exempted from the
application of the GST Act but is subject to any Tax Equivalents Regime.








 


		b)	A Party to which a Tax Equivalents Regime applies will
be treated, as far as possible, as if it is fully liable to GST, eligible for input tax credits and otherwise subject to the GST
Act and a liability of such a Party to pay an amount under a Tax Equivalents Regime will be treated as a liability to pay GST.



 






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		13	No undisclosed principals or undisclosed trusts



 


Except as expressly stated in writing in this Agreement, no
person enters into this Agreement as an agent for any other person or as trustee of any trust or on behalf or for the benefit of
any other person.


 


		14	Disclaimer, Release and Indemnity



 


		14.1	Disclaimer



 


The Recipient carries out the Project entirely at its own risk.
To the full extent permitted by law, the State will not be liable for any Demand brought against or made upon or incurred by the
Grantee in carrying out the Project, excluding where that Demand arose as the direct result of any breach, fault, negligent or
unlawful act or omission by the State, its employees, agents and contractors.


 


		14.2	Release and Indemnity



 


To the full extent permitted by law, the Grantee releases and
indemnifies the State and the State Government and their respective employees, agents and contractors from and against all costs,
expenses, damages and losses (including any cost of settlement) suffered as a result of any Demand which may be brought or made
against the State, the State Government, their employees, agents and contractors by any person arising directly or indirectly out
of:


 


		a.	any breach of this Agreement by the Grantee; or



 


		b.	any act or omission of the Grantee or any Group Entity
or their Employees, agents or contractors in connection with the Project,



 


except to the extent that any breach, fault, negligent or unlawful
act or omission by the State, the State Government, their respective employees, officers and agents has directly caused or contributed
to the Demand.


 


		15	No Partners



 


		a.	Nothing contained or implied in this Agreement constitutes
that a Party is the partner, agent, or legal representative of another Party for any purpose or creates any partnership, agency
or trust, and no Party has any authority to bind another Party in any way.



 


		b.	The Grantee must ensure that the Grantee and the Group
Entities and their employees, agents and contractors do not represent that:



 


		i.	 	the State Government is a party to or involved in the
Project;



 


		ii.	 	the Project has been given any particular endorsement,
support or status by the State Government;



 


		iii.	 	they act in any capacity on behalf of the State Government
under this Agreement; or



 


		iv.	 	they are a partner, agent, or legal representative
of the State Government under this Agreement.



 






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		16	Communication of breaches



 


If the Grantee breaches clause 11 or 15, the Grantee must promptly
take such steps as the State directs to limit or remove the potential for any person to rely on any representation or make a Demand
against the State, or the State Government or their employees, agents or contractors, arising out of or in connection with such
breach. If the Grantee does not comply with this clause 16, the State may take any such steps in its own name or in the name of
the Grantee, and recover the cost of doing so from the Grantee on demand.


 


		17	Notices



 


		17.1	Form



 


Unless expressly stated otherwise in this Agreement, all Notices
in connection with this Agreement must be in writing, signed by the sender (if an individual) or an Authorised Officer of the sender
and marked for the attention of the person identified in the Details on page 1 or, if the recipient has notified otherwise, then
marked for attention in the way last notified.


 


		17.2	Delivery



 


Notices must be:


 


		a.	left at the address set out or referred to in the Details;



 


		b.	sent by prepaid ordinary
post (airmail if appropriate) to the address set out or referred to in the Details;



 


		c.	sent by fax to the fax number
set out or referred to in the Details; Or



 


		d.	given in any other way permitted
by law.



 


However, if the intended recipient has
notified a changed postal address or changed fax number, then the communication must be to that address or number.


 


		17.3	When effective



 


Notices take effect from the time they are received unless a
later time is specified.


 


		17.4	Receipt - post



 


If sent by post, the Notices are taken to be received three
days after posting (or seven days after posting if sent to or from a place outside Australia).


 


		17.5	Receipt – fax



 


If sent by fax, the Notices are taken to be received at the
time shown in the transmission report as the time that the whole fax was sent.


 






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		17.6	Receipt - general



 


Despite clauses 17.4 and 17.5, if they are received after 5.00pm
in the place of receipt or on a non-Business Day, they are to be taken to be received at 9.00am on the next Business Day.


 


		18	Assignment



 


		18.1	Assignment by the Grantee



 


The Grantee may not assign, novate or otherwise deal with its
rights and obligations under this Agreement or allow any interest in them to arise or be varied in each case, without the prior
written consent of the State. For the purposes of this clause and for the avoidance of any doubt, an assignment under this clause
includes but is not limited to a change in the ultimate or beneficial ownership of the Grantee, such that the assignment results
in a change in Control of the Grantee.


 


		18.2	Assignment by the State



 


The State may assign, novate or otherwise deal with its rights
and obligations under this Agreement or allow any interest in them to arise or be varied in each case, without the consent the
Grantee. The Grantee must enter into any agreements or deeds reasonably required by the State to give effect to any such assignment,
novation or dealing.


 


		18.3	Other State Government Departments



 


The Grantee acknowledges that a Department of the State Government
(other than the Department of Employment, Economic Development and Innovation) may administer the Scheme from time to time and
may be substituted for the Department of Employment, Economic Development and Innovation.


 


		19	Severability



 


If the whole or any part of a provision of this Agreement is
void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Agreement has full
force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has
no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.


 


		20	Entire agreement



 


This Agreement constitutes the entire agreement
of the Parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject
matter.


 


		21	Dispute resolution



 


		21.1	Reasonable endeavours to settle



 


		(a)	If a Dispute arises, the Party claiming the Dispute
will send the other Parties written notice:



 


		(i)	stating that it is a notice under this clause 21.1(a);
and



 




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		(ii)	specifying in reasonable detail



 


		(A)	the nature of the Dispute; and



 


		(B)	the matters on which the Parties are unable to agree
at the date of the notice of the Dispute;



 


		(b)	The Parties undertake in good faith to use all reasonable
endeavours to settle the Dispute expeditiously within 10 Business Days from the date of the notice in clause 21.1(a).



 


		21.2	Mediation



 


If the Parties cannot resolve the Dispute within the time stipulated
in clause 21.1(b), the Dispute must be referred to mediation. Mediation is to be administered by the Australian Commercial Disputes
Centre Limited ("ACDC"), conducted in Brisbane, Queensland and held in accordance with the ACDC Guidelines for Commercial
Mediation.


 


		21.3	Appointment of mediator



 


For the purpose of mediation of the Dispute under clause 21.2,
the Parties agree to appoint a mediator. The mediator must be appointed within 5 Business Days of the expiry of the time period
in clause 21.1(b) and will be an independent person agreed between the Parties.


 


If the Parties do not agree as to the mediator to be appointed
within that time, either Party must procure the president or other senior office bearer for the time being of the ACDC to nominate
a person to act as mediator. Mediation between the Parties must occur within 15 Business Days from the date the mediator is appointed
and the Parties must co-operate with the mediator in an effort to resolve the Dispute. Any costs incurred by the mediator in conducting
the mediation are to be met equally by the Parties


 


		21.4	Resolution of Dispute



 


		a)	If the Dispute is resolved the Parties must execute
terms of settlement; or



 


		b)	If the Dispute is not resolved within 15 Business Days
of commencement of the mediation or within any extended time agreed to by the Parties in writing, the mediation must cease and
either Party may commence legal proceedings.



 


		22	General



 


		22.1	Discretion in exercising rights



 


The State may exercise a right or remedy or give or refuse its
consent in any way it considers appropriate (including by imposing conditions), unless this Agreement expressly
states otherwise.


 




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		22.2	Partial exercising of rights



 


If a Party does not exercise a right or remedy fully or at a
given time, the Party may still exercise it later.


 


		22.3	No liability for loss



 


Subject to clauses 22.14(b), a Party is
not liable for loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising a right or remedy
under this Agreement.


 


		22.4	Approvals and consents



 


By giving its approval or consent a Party
does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.


 


		22.5	Remedies cumulative



 


The rights and remedies provided in this Agreement are in addition
to other rights and remedies given by law independently of this Agreement.


 


		22.6	Rights and obligations are unaffected



 


Rights given to the Parties under this
Agreement and the Parties' liabilities under it are not affected by anything which might otherwise affect them by law.


 


		22.7	Variation and waiver



 


A provision of this Agreement or a right created under it, may
not be varied except in writing, signed by the Party or Parties to be bound.


 


		22.8	Indemnities



 


The indemnities in this Agreement are continuing
obligations, independent from the other obligations of the Party under this Agreement and continue after this Agreement ends. It
is not necessary for a Party to incur expense or make payment before enforcing a right of indemnity under this Agreement.


 


		22.9	Other continuing obligations



 


The obligations contained in clauses 6.2, 6.5, 8.9(a), 8.11,
9.8, 11 and 12 are continuing obligations and continue after this Agreement ends.


 


		22.10	Further steps



 


Each Party agrees, at its own expense,
to do anything the other Party asks (such as obtaining consents, signing and producing documents and getting documents completed
and signed):


 




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		a)	to bind the Party and any other person intended to
be bound under this Agreement; and



 


		b)	to show whether the Party is complying with this Agreement.



 


		22.11	Prompt performance



 


If this Agreement specifies when the Party
agrees to perform an obligation, the Party agrees to perform it by the time specified. Each Party agrees to perform all other obligations
promptly.


 


		22.12	Set-off



 


At any time after a Default Event, the
State may set off any amount due for payment by the Grantee to the State against any amount due for payment by the State to the
Grantee under this Agreement.


 


		22.13	Construction



 


No rule of construction applies to the
disadvantage of a Party because that Party was responsible for the preparation of, or seeks to rely on, this Agreement or any part
of it.


 


		22.14	Costs



 


		(a)	Subject to clauses 22.14(b) and 22.15, the Parties
agree to pay their own legal and other costs and expenses in connection with the preparation and execution of this Agreement and
other related documentation.



 


		(b)	The Grantee agrees to pay or reimburse the State on
demand for the State's costs in exercising or attempting to exercise the State's rights under this Agreement in respect of any
Suspension Event or Default Event, including legal costs on whichever is the higher of a full indemnity basis or solicitor own
client basis.



 


		22.15	Stamp duty



 


The Grantee agrees to:


 


		(a)	pay all stamp duty (including fines, penalties and
interest) payable and assessed by legislation or by any revenue office on this Agreement, on any instruments entered into under
this Agreement, and in respect of a transaction evidenced by this Agreement; and



 


		(b)	indemnify on demand the State against any liability
for that stamp duty (including fines, penalties and interest).



 


		22.16	Change in law



 





Notwithstanding any term of this Agreement,
the State's obligation to provide all or part of the Financial Assistance will be reduced or cease to the extent that any change
to, or repeal of, the law (including, without limitation, the Duties Act 2001 (Qld), Land Tax Act 1915 (Qld) and Payroll Tax Act
1971 (Qld)) has the effect of reducing or removing the basis for that part of the Financial Assistance.


 






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		22.17	Counterparts



 


This Agreement may consist of a number
of copies, each signed by one or more Parties to the agreement. If so, the signed copies are treated aS making up the one document
and the date on which the last counterpart is executed will be the date of the agreement.


 


		23	Governing law



 


		23.1	Governing law



 


This Agreement is governed by the law in
force in the State of Queensland.


 


		23.2	Jurisdiction



 


Each Party submits to the non-exclusive
jurisdiction of the courts of Queensland and courts of appeal from them. Each Party waives any right it has to object to an action
being brought in those courts including, without limitation, by claiming that the action has been brought in an inconvenient forum
or that those courts do not have jurisdiction.


 


		23.3	Serving documents



 


Without preventing any other method of service, any document
in an action may be served on a Party by being delivered or left at that Party's address Details.


 


		24	Interpretation



 


		24.1	Definitions



 


These meanings apply unless the contrary intention appears:


 


Agreement means this document and any Schedules or annexures
to it.


 


Amount of the Consideration means:


 


		a)	the amount of any payment in connection with a supply;
and



 


		b)	in relation to non-monetary consideration in connection
with a supply, the GST exclusive market value of that consideration as reasonably determined by the supplier.



 




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Ancillary Material includes any
contract, insurance policy or a certificate of currency for the insurance policy, assessment, invoice, receipt, report, record,
Authorisation, statutory declaration or other document or information relating to or in connection with the Project, the Grantee
or any Group Entity and includes (without limitation) details of any matters required to be disclosed to the State under either
clause 5.1(m)(iv) or clause 10.1(i).


 


Application means the application
and any other information provided by the Grantee to the State in support of the application for financial assistance under the
Scheme in relation to the Project.


 


Approved Purpose means the purposes specified in the
Reference Schedule relating to the Project.


 


Approved Security Provider has the
meaning it has in the Financial and Performance Management Standard 2009 (Old) as enacted by the Financial Accountability Act 2009
(QId).


 


Authorisation includes:


 


		a)	any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence, approval, authority or exemption from, by or with a Government Agency;
or



 


		b)	in relation to anything which will be fully or partly
prohibited or restricted by law if a Government Agency intervenes or acts in any way within a specified period after lodgement,
filing, registration or notification, the expiry of that period without intervention or action.



 


Authorised Officer means:


 


		a)	in the case of the Grantee, any officer or employee
of the Grantee notified to the State in writing by the Grantee from time to time, as an authorised officer of the Grantee for
the purposes of this Agreement (including clause 5.2) and for whom details (including name and contact details) and a specimen
signature has been provided to the State in accordance with clause 4.1(a); and



 


		b)	in the case of the State, a person appointed by the
State to act as an Authorised Officer for the purposes of this Agreement.



 


Base Employees are the Employees specified as such in
the Reference Schedule


 


Base Employee Number means the number of Base Employees
specified in the Reference Schedule.


 


Business Day means a day other than a Saturday, Sunday
or public holiday in Brisbane, Queensland.


 




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Capital Expenditure means the amount
as specified in the Reference Schedule, to be incurred by the Grantee in relation to plant and equipment, land, buildings and infrastructure
for the Project, but excludes operating expenditure and GST.


 


Cash Grant means an amount to defray
in whole or part Project expenses incurred by the Grantee for an Approved Purpose, up to the maximum aggregate amount stated in
the Reference Schedule as the Cash Grant.


 


The Cash Grant does not include Project
expenses relating to the reimbursement of any tax, duty or other amount paid by the Grantee to the State Government.


 


Claim Form means the claim form(s) contained in Schedules
3, 4, 5 and 6 (as applicable).


 


Contract Performance Guarantee means
security provided by an Approved Security Provider for the amount specified in the Reference Schedule, which meets the requirements
of Division 6 of the Financial and Performance Standard 2009 (Old), on terms satisfactory to the State.


 


Control of a corporation means having:


 


		a)	more than 19.9% of the votes eligible to be cast in
the election of directors or any similar matter;



 


		b)	the right to appoint or remove directors (or members
of a governing body having functions similar to a board of directors) any similar matter representing more than 19.9% of the votes
exercisable by all the directors (or persons having similar functions);



 


		c)	an interest of more than 49.9% in any category of the
profits. distributions or net liquidation proceeds of that corporation; or



 


		d)	control within the meaning of section 50AA of the Corporations
Act.



 


Controller has the meaning it has in the Corporations
Act.


 


Corporations
Act means the Corporations Act 2001 (Cwlth).


 


Default Event means an event described in clauses 9.6(a)
to (n) (inclusive).


 


Demand means any allegation, debt,
cause of action, liability, claim, proceeding, suit or demand for any cost, loss, injury, damage or expense of any nature howsoever
arising and whether present or future, fixed or unascertained, actual or contingent, direct or consequential, whether at law, in
equity, under statute or otherwise.


 


Details means the section of this Agreement headed "Details".


 




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Dispute means any dispute, controversy, difference or
Demand between the Parties as to:


 


		a)	the construction of this Agreement;



 


		b)	the rights or obligations of a Party under this Agreement;
or



 


		c)	any other matter arising out of or relating to this
Agreement including any question regarding the existence, validity or termination of this Agreement,



 


other than one entitling a Party to claim for urgent interim
or interlocutory relief.


 


Employees means a person:


 


		a)	directly employed by the Grantee in Queensland on a
permanent full time basis;



 


		b)	contracted or engaged through an employment agency
in Queensland by the Grantee in Queensland on a full-time basis; or



 


		c)	who is an independent contractor or an employee of
a third party, engaged on a full-time basis to fill a position reasonably determined by the State to be a position directly related
to the Project,



 


who works not less than the customary relevant
award hours (or if no award applies, 37.5 hours) per week of each working week of a year other than the statutory or award holiday
periods, and for whom the Grantee is liable to pay payroll tax in Queensland in respect of that Employees wages or salaries, but
does not include an Excluded Employee.


 


For the purposes of this definition, two
or more persons who fall within the same category above but are engaged part-time on a permanent, casual or contract basis, who
in aggregate work such hours, will be counted as a single person.


 


Employee Reporting Arrangement means the format for the
reporting of Employee, Base Employee Number and Eligible Employee related information by Grantee, which is acceptable to the State,
and agreed by the State and the Grantee pursuant to clause 7.3(a).


 


End Date has the meaning given to that term in the Reference
Schedule.


 


Excluded Employee means:


 


		a)	an Employee, employed or engaged by the Grantee through
a transmission of the whole or any part of any business, including by takeover, transfer, succession or other form of acquisition
where that Employee was, at the time of the transmission, employed or engaged in relation to the business in Queensland;



 




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		b)	if the Project relates to the expansion of a Facility
existing in Queensland at the date of this Agreement, an Employee who, before the date of this Agreement was an Employee of the
Grantee or of any Group Entity in Queensland at the Facility; and



 


		c)	if the Project relates to the establishment or relocation
of a Facility, any Employee employed or engaged in a position or function created at or relocated to the Facility, comprising
a function or position or a number of functions or positions performed at another office or location of the Grantee in Queensland
before the establishment or relocation of the Facility whether or not there has been any redesignation of the position or function
after its creation at or relocation to the Facility; or



 


		d)	any Employee defined as an Excluded Employee in the
Reference Schedule



 


		e)	any Other Excluded Employee.



 


Facility has
the meaning given to it in the Reference Schedule.


 


Financial
Assistance means assistance in the form of the reimbursements described in clause 7.1 (as applicable), by the State to the
Grantee.


 


Financial Statements means:


 


		a)	a statement of financial performance;



 


		b)	a statement of financial position; and



 


		c)	a statement of cash flows,



 


together with any notes to those documents,
a directors’ declaration as required under the Corporations Act and any other information necessary to give a true and fair
view.


 


Government Agency means any governmental,
semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency
or entity.


 


Group Entity means any related body corporate or associate
of the Grantee (as those terms are defined in the Corporations Act).


 


GST has the meaning it has in the GST Act.


 


GST exclusive market value
has the meaning it has in the GST Act.


 


GST Act means the A New Tax System (Goods and Services
Tax) Act 1999 (Cwlth).


 


A person is Insolvent if:


 


		a)	it is (or states that it is) an insolvent under administration
or insolvent (each as defined in the Corporations Act);



 




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		b)	it has had a Controller appointed or is in liquidation
(including voluntary liquidation, provisional liquidation, under administration or wound up or has had a receiver or a receiver
and manager appointed to any part of its property or any mortgage, charge or other security over any of the Grantee's property
is enforced;



 


		c)	it is subject to any arrangement, assignment, moratorium
or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction
or amalgamation while solvent on terms approved by the State);



 


		d)	an application or order has been made (and in the case
of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other
action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;



 


		e)	it is taken (under section 459F(1) of the Corporations
Act) to have failed to comply with a statutory demand;



 


		f)	it is the subject of an event described in section
459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another Party to this Agreement reasonably
deduces it is so subject);



 


		g)	it is otherwise (including, without limitation, in
the State's reasonable opinion) unable to pay its debts when they fall due; or



		 	 



		h)	something having a substantially similar effect to
(a) to (g) happens in connection with that person under the law of any jurisdiction (including, without limitation, to a Grantee
who is an individual).



 


Key Personnel means those persons
identified as such in the Reference Schedule.


 


Land Tax Terms has the meaning given to it in the Reference
Schedule.


 


Milestone Date means the dates by which any Performance
Criteria are required to be satisfied, as specified in the Project Development Program.


 


Month means one calendar month.


 


Notices include notices, certificates, consents, approvals,
waivers and other communications.


 


Operations Commencement Date means the date stated in
the Reference Schedule.


 


Other Pre-conditions has the meaning given to it in the
Reference Schedule.


 


Other Default Events has the meaning given to it in the
Reference Schedule.


 


Other Excluded Employees has the meaning given to it
in the Reference Schedule.


 


Other Special Conditions has the meaning given to it
in the Reference Schedule,


 




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Other Suspension Events has the meaning given to it in
the Reference Schedule.


 


Party means a party to this Agreement and Parties
means every Party.


 


Payment Date means within a reasonable time of the State
being satisfied of the matters contained in clause 7.4.


 


Payroll Tax Terms has the meaning given to it in the
Reference Schedule.


 


Performance Criteria means the:


 


		a)	minimum employment or engagement levels relating to
Employees or Eligible Employees (as the case may be) to be satisfied by the Grantee;



		 	 



		b)	the minimum Capital Expenditure to be incurred in Queensland
by the Grantee; or



		 	 



		c)	any other matter required to have occurred or be satisfied
by the Grantee,



 


by the relevant Milestone Date, as specified
in the Project Development Program.


 


Project has the meaning given to it in the Reference
Schedule.


 


Project Commencement Date means the date stated in the
Reference Schedule.


 


Project Development Program means the program for carrying
out the Project and satisfying the Performance Criteria, as set out in Schedule 2.


 


Quarter means a quarter ending on 31 March, 30 June,
30 September or 31 December (as applicable).


 


Records means books of account,
transaction records and operating records in connection with the Project (which includes, without limitation, all information and
material necessary to prepare and explain the Report).


 


Reference Schedule means the reference schedule contained
in Schedule 1.


 


Regional Queensland means any part
of the State of Queensland apart from South East Queensland


 


Report means a report under clause 8.3.


 


Reporting Date has the meaning given to it in the Reference
Schedule,


 


Representative of a Party includes
an employee, agent, officer, director, auditor, advisor, partner, consultant, joint venturer, contractor or subcontractor of that
Party.


 


Schedule means any schedule or annexure to this Agreement.


 




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Scheme means the Regional Queensland Investment Incentives
Scheme administered by the State.


 


Site means the location of the Facility, as described
in the Reference Schedule.


 


South East Queensland means the Queensland statistical
division of Brisbane, as defined by the Australian Bureau of Statistics July 2006.


 


Stamp Duty Terms has the meaning given to it in the Reference
Schedule.


 


State Government includes the Queensland
Government, any of its departments or divisions, Ministers, government-owned corporations, any agent or representative of the State,
or a corporation or body constituted for a public purpose of the State.


 


Suspension Event means:


 


		a)	a Default Event occurs;



		 	 



		b)	the Grantee or a Group Entity does not pay an amount
which is due and payable by the Grantee or any of its Group Entities (as the case may be) to the State Government (whether or
not connected with the Project), including, without limitation, under any freehold or State Government leasehold lease, any tax,
duty or other charge, in relation to any Authorisation or in relation to any financial arrangement);



		 	 



		c)	Any Other Suspension Event occurs.



 


Tax Equivalents Regime means a tax
equivalents regime established by a law of the Commonwealth, State or Territory Government or operated on a principle as enunciated
in clause 17 of the Intergovernmental Agreement on the Reform of Commonwealth State Financial Relations dated June 1999.


 


Term means the period between the Operations Commencement
Date and the End Date (inclusive).


 


		24.2	References to certain general terms



 


Unless the contrary intention appears, a reference in this Agreement
to:


 


		a)	(variations or replacement) a document (including
this Agreement) includes any variation or replacement of Agreement) includes any variation or replacement of it;



		 	 



		b)	(clauses, annexures and schedules) a clause,
annexure or schedule is a reference to a clause in or annexure or schedule to this Agreement;



		 	 



		c)	(reference to statutes) a statute, ordinance,
code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements
of any of them;



 




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		d)	(law) law means common law, principles of equity,
and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other
instruments under them, and consolidations, amendments, reenactments or replacements of any of them);



		 	 



		e)	(singular includes plural) the singular includes
the plural and vice versa;



		 	 



		f)	(person) the word "person" includes
an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association, or any Government
Agency;



		 	 



		g)	(executors, administrators, successors) a particular
person includes a reference to the person's executors, administrators, successors, substitutes (including persons taking by novation)
and assigns;



		 	 



		h)	(two or more persons) an agreement, representation
or warranty in favour of two or more persons is for the benefit of them jointly and each of them individually;



		 	 



		i)	(jointly and severally) an agreement, representation
or warranty by two or more persons binds them jointly and each of them individually;



		 	 



		j)	(reference to a group of persons) a group of
persons or things is a reference to any two or more of them jointly and to each of them individually;



		 	 



		k)	(dollars) Australian dollars, dollars, A$ or
$ is a reference to the lawful currency of Australia;



		 	 



		l)	(calculation of time) if a period of time dates
from a given day or the day of an act or event, it is to be calculated exclusive of that day;



		 	 



		m)	(meaning not limited) the words "include",
"including", "for example" or "such as" are not used as, nor are they to be interpreted as, words
of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example
or examples of a similar kind;



		 	 



		n)	(next day) if an act under this Agreement to
be done by a Party on or by a given day is done after 5.00pm on that day, it is taken to be done on the next day;



		 	 



		o)	(next Business Day) if an event under this Agreement
must occur on a stipulated day which is not a Business Day then the stipulated day will be taken to be the next Business Day;



		 	 



		p)	(time of day) time is a reference to Brisbane,
Queensland time;



		 	 



		q)	(grammatical form) where any word or phrase
is given a defined meaning, any other grammatical form of that word or part of speech has corresponding meaning; and



		 	 



		r)	(reference to anything) anything (including
any amount) is a reference to the whole and each part of it.



 






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		24.3	Headings



 


Headings (including those in brackets at
the beginning of paragraphs) are for convenience only and do not affect the interpretation of this Agreement.


 


		24.4	Inconsistency



 


To the extent that there is an inconsistency
between the terms of this Agreement and the terms of the Reference Schedule, the terms of the Reference Schedule prevail.


 




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EXECUTED as an agreement


 


State of Queensland


 


SIGNED by THE HONOURABLE ANDREW FRASER MP. Treasurer
and the Minister for the Department of Employment,Economic DevelopmentandInnovation (ABN 24 830 236 406) on behalf
of the STATE OF QUEENSLAND 


 


/s/ State of Queensland


 


Grantee


 


SIGNED by eco-Kinetics Pty Ltd (ABN 56 123 950 256) in
accordance with section 127(1) of the Corporations Act 2001 (Cwlth) by authority of its directors:


 


/s/ eco-Kinetics Pty Ltd


 






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