Unassociated Document


    


     

    FUNDING
AGREEMENT

     

    BETWEEN

     

    COMMONWEALTH
OF AUSTRALIA

    as
represented by and acting through the Department of the

    Environment
and Water Resources ABN 34 190 894 983

    AND

     

    ZBB
Technologies Ltd

     

    ABN
57 008 958 254

     

    in
relation to funding for the

     

    Advanced
Electricity Storage Technologies programme


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    Table of
Contents

     

    
      
        
          
            
              
                
                  	
                          PARTIES

                        	 
      	
                          4

                        
	
                          PURPOSE

                        	 
      	
                          4

                        
	
                          1.

                        	 
      	
                          INTERPRETATION

                        	 
      	
                          4

                        
	
                          2.

                        	 
      	
                          TERM
      OF THIS AGREEMENT

                        	 
      	
                          10

                        
	
                          3.

                        	 
      	
                          OTHER
      AUSTRALIAN GOVERNMENT FUNDING

                        	 
      	
                          10

                        
	
                          4.

                        	 
      	
                          PAYMENT

                        	 
      	
                          11

                        
	
                          5.

                        	 
      	
                          MANAGEMENT
      OF FUNDING

                        	 
      	
                          11

                        
	
                          6.

                        	 
      	
                          ORGANISATION’S
      CONTRIBUTIONS AND OTHER CONTRIBUTIONS

                        	 
      	
                          14

                        
	
                          7.

                        	 
      	
                          ASSETS

                        	 
      	
                          15

                        
	
                          8.

                        	 
      	
                          RECORDS

                        	 
      	
                          17

                        
	
                          9.

                        	 
      	
                          REPORTING

                        	 
      	
                          18

                        
	
                          10

                        	 
      	
                          TAXES,
      DUTIES AND GOVERNMENT CHARGES

                        	 
      	
                          20

                        
	
                          11.

                        	 
      	
                          AUSTRALIAN
      GOVERNMENT MATERIAL

                        	 
      	
                          21

                        
	
                          12.

                        	 
      	
                          INTELLECTUAL
      PROPERTY

                        	 
      	
                          21

                        
	
                          13.

                        	 
      	
                          CONFIDENTIAL
      INFORMATION

                        	 
      	
                          23

                        
	
                          14.

                        	 
      	
                          PROTECTION
      OF PERSONAL INFORMATION

                        	 
      	
                          25

                        
	
                          15.

                        	 
      	
                          INDEMNITY

                        	 
      	
                          26

                        
	
                          16.

                        	 
      	
                          INSURANCE

                        	 
      	
                          27

                        
	
                          17.

                        	 
      	
                          CONFLICT
      OF INTEREST

                        	 
      	
                          27

                        
	
                          18.

                        	 
      	
                          ACCESS
      TO PREMISES AND RECORDS

                        	 
      	
                          28

                        
	
                          19.

                        	 
      	
                          DELAY

                        	 
      	
                          29

                        
	
                          20.

                        	 
      	
                          TERMINATION
      WITH COSTS

                        	 
      	
                          29

                        
	
                          21.

                        	 
      	
                          TERMINATION
      FOR DEFAULT

                        	 
      	
                          31

                        
	
                          22.

                        	 
      	
                          SUBCONTRACTING

                        	 
      	
                          33

                        
	
                          23.

                        	 
      	
                          ACKNOWLEDGMENT
      AND PUBLICITY

                        	 
      	
                          34

                        
	
                          24.

                        	 
      	
                          SPECIFIED
      PERSONNEL

                        	 
      	
                          34

                        
	
                          25.

                        	 
      	
                          COMPLIANCE
      WITH LAWS AND OUR POLICIES

                        	 
      	
                          35

                        
	
                          26.

                        	 
      	
                          NEGATION
      OF LEGAL RELATIONSHIP OF EMPLOYMENT, PARTNERSHIP AND
AGENCY

                        	 
      	
                          35

                        
	
                          27.

                        	 
      	
                          ENTIRE
      AGREEMENT, VARIATION AND SEVERANCE

                        	 
      	
                          35

                        
	
                          28.

                        	 
      	
                          WAIVER

                        	 
      	
                          36

                        
	
                          29.

                        	 
      	
                          ASSIGNMENT
      AND NOVATION

                        	 
      	
                          36

                        
	
                          30.

                        	 
      	
                          CORPORATE
      GOVERNANCE

                        	 
      	
                          36

                        
	
                          31.

                        	 
      	
                          FUNDING
      PRECONDITION

                        	 
      	
                          36

                        
	
                          32.

                        	 
      	
                          DISPUTE
      RESOLUTION

                        	 
      	
                          37

                        
	
                          33.

                        	 
      	
                          APPLICABLE
      LAW AND JURISDICTION

                        	 
      	
                          38

                        
	
                          34.

                        	
                            

                        	
                          LIAISON
      AND MONITORING

                        	
                            

                        	
                          38

                        


                

              

            

          

        

      

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    
      
        
          
            
              
                
                  
                    	
                            35.

                          	 
      	
                            NOTICES

                          	 
      	
                            38

                          
	
                            36.

                          	 
      	
                            COMPLIANCE
      WITH THE NATIONAL CODE OF PRACTICE FOR THE CONSTRUCTION
      INDUSTRY

                          	 
      	
                            39

                          
	
                            37.

                          	 
      	
                            REVIEW

                          	 
      	
                            41

                          
	
                            38.

                          	 
      	
                            ANIMAL
      ETHICS

                          	 
      	
                            41

                          
	
                            SCHEDULE

                          	 
      	
                            42

                          
	
                            EXECUTION
      CLAUSES

                          	
                              

                          	
                            52

                          


                  

                

              

            

          

        

      

    

    


    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    PARTIES

     

    COMMONWEALTH OF AUSTRALIA
(‘Commonwealth’), as represented by and acting through the Department of the Environment and
Water Resources ABN 34 190 894 983 (‘the Department’)

     

    AND

     

    ZBB Technologies Ltd ABN 57
008 958 254, (‘the Organisation’) a company registered under the Corporations
Act 2001 and having its registered office at 240 Barrington Street Bibra Lake
WA.

     

    PURPOSE

     

    
      The
Advanced Electricity Storage Technologies (AEST) program objective is to
maximise the value of renewable energy from intermittent electricity generation
through the development and application of energy storage technologies for
on-grid megawatt size storage for large renewable energy systems, on-grid
kilowatt size storage for household photovoltaic electricity systems and remote
area power supplies and other renewable electricity
applications.

    

     

    
      	
              B.

            	
              The
      Organisation is committed to helping achieve the AEST programme objective
      through its conduct of the Project Activities contained in their AEST
      Final Application dated 24 November 2006 and attached to this agreement at
      Annexure A.

            


    

     

    
      	
              C.

            	
              As
      a result of this commitment, the Commonwealth has agreed to support the
      Project Activities and the achieving of the Objectives by providing
      Funding to the Organisation, subject to the terms and conditions of this
      Agreement.

            


    

     

    
      	
              D.

            	
              The
      Commonwealth is required by law to ensure accountability for public money,
      and to be accountable for all Funds it
provides.

            


    

     

    
      	
              E.

            	
              The
      Organisation agrees to accept the Funding for the purposes, and subject to
      the terms and conditions, set out in this
  Agreement.

            


    

     

       1.    
         INTERPRETATION

     

      
1.1             In
this Agreement, unless the contrary intention appears:

     

    ‘ABN’ has the same meaning as
it has in section 41 of the A
New Tax System (Australian Business Number) Act 1999 (Cth);

     

    ‘Activity’ means the activity
described in the Schedule, which aims to fulfil one or more of the goals of the
Program, and includes the provision of Activity Material;

     

    ‘Activity Generated Income’
means any income earned or generated by the Organisation from its use of
the Funding, including:

    
      	
               
      

            	
              (a)

            	
              interest
      earned from the investment of the
Funds;

            


    

    
      	
               
      

            	
              (b)

            	
              where
      the proceeds of insurance paid to the Organisation to replace an Asset
      exceed the amount actually paid by the Organisation to replace the Asset -
      the proportion of that excess that reflects the proportion of the total
      cost of acquiring the Asset that was met by the Funding;
    and

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    
      	
            	
              (c)

            	
              the
      proportion of any income received by the Organisation 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;

            


    

     

    ‘Activity Material’ means all
Material:

     

    
      	
               
      

            	
              (i)

            	
              brought
      into existence for the purpose of performing the
  Activity;

            


    

     

    
      	
               
      

            	
              (ii)

            	
              incorporated
      in, supplied or required to be supplied along with the Material referred
      to in paragraph (i); or

            


    

     

    
      	
               
      

            	
              (iii)

            	
              copied
      or derived from Material referred to in paragraphs (i) or
      (ii);

            


    

     

    ‘Activity Period’ means the
period specified in the Schedule during which the Activity must be
completed;

     

    ‘Adjustment Note’ has the
meaning given in section 195-1 of the GST Act;

     

    ‘Advisers’ means a Party’s
agents, contractors or advisers engaged in the performance or management of this
Agreement;

     

    ‘Agreement’ means this
document and includes any Schedules and Annexures;

     

    ‘Annexure’ means an annexure
to the Schedule; ‘Approved
Auditor’ means a person who is:

    
      	
            	
              (a)

            	
              registered
      as a company auditor under the Corporations Act 2001,
      or a member of the Institute of Chartered Accountants in Australia,
      or of CPA Australia or the National Institute of Accountants;
      and

            


    

     

    
      	
            	
              (b)

            	
              not
      a principal, member, shareholder, officer or employee of the
      Organisation’s or of a related body corporate as defined in section 9 of
      the Corporations Act
      2001 or the Organisation’s Qualified
  Accountant;

            


    

     

    ‘Asset’ means any item of
tangible property, purchased, leased, created or otherwise brought into
existence wholly, or in part, with the use of the Funds, which has a value of
over $5,000 inclusive of GST, but does not include Activity
Material;

     

    ‘Auditor-General’ 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;

     

    ‘Australian Accounting Standards’
refers to 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);

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        5

        
          

        

      

      
         


      

    


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

     

    ‘Australian Government Material’
means any Material provided by the Commonwealth to the Organisation for
the purposes of this Agreement or which is copied or derived from Material so
provided, except for Activity Material;

     

    ‘Budget’ refers to a budget
for expenditure of the Funding for the purposes of conducting the Activity or
performing obligations under this Agreement, as stipulated in the
Schedule;

     

    ‘Business Day’ means in
relation to taking any action in a place, any day other than a Saturday, Sunday
or public holiday in that place;

     

    ‘Commonwealth’ means the
Commonwealth of Australia;

     

    ‘Completion Date’ means,
unless a date is specified in the Schedule, the day after the Organisation has
done all that it is required to do under this Agreement to the Department’s
satisfaction;

     

    ‘Confidential Information’
means:

     

    
      	
            	
              (a)

            	
              the
      information described in the Schedule;
and

            


    

     

    
      	
            	
              (b)

            	
              information
      that is agreed between the Parties after the Date of this Agreement as
      constituting Confidential Information for the purposes of this
      Agreement.

            


    

     

    ‘Conflict’ refers to a
conflict of interest, or risk of a conflict of interest, or an apparent conflict
of interest arising through the Organisation engaging in any activity or
obtaining any interest that is likely to conflict with or restrict the
Organisation in providing the Activity to the Commonwealth fairly and
independently;

     

    ‘Constitution’ means
(depending on the context):

     

    
      	
            	
              (a)

            	
              a
      company’s constitution, which (where relevant) includes any rules and
      amendments that are part of the company’s constitution;
  or

            


    

     

    
      	
            	
              (b)

            	
              in
      relation to any other kind of body:

            


    

     

    
      	
               
      

            	
              (i)

            	
              the
      body’s charter, rules or memorandum;
or

            


    

     

    
      	
               
      

            	
              (ii)

            	
              any
      instrument or law constituting or defining the constitution of the body or
      governing the activities of the body or its
  members;

            


    

     

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

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        6

        
          

        

      

      
         


      

    


    ‘Department’ means the
Commonwealth Department of the Environment and Water Resources (or any other
Commonwealth department or agency that is, from time to time, responsible for
the administration of this Agreement) and the delegates, officers, employees and
agents of that Department;

     

    ‘Depreciated’ means the amount
representing the reduction in value of an Asset calculated in accordance with
Australian Accounting Standards;

     

    ‘Existing Material’ means all
Material in existence prior to the Date of the Agreement:

     

    
      	
            	
              (a)

            	
              incorporated
      in;

            


    

     

    
      	
            	
              (b)

            	
              supplied
      with, or as part of; or

            


    

     

    
      	
            	
              (c)

            	
              required
      to be supplied with, or as part of; the Activity
  Material;

            


    

     

    ‘Financial Year’ means each
period from 1 July to the following 30 June occurring during the Activity
Period, or any part of such a period occurring at the beginning or end of the
Activity Period;

     

    ‘Funding’ or ‘Funds’ means the amount or
amounts (in cash or kind) payable under this Agreement by the Commonwealth as
specified in the Schedule, including Activity Generated Income;

     

    ‘GST’ has the meaning given in
section 195-1 of the GST Act;

     

    ‘GST Act’ means the A New Tax System (Goods and Services
Tax) Act 1999 (Cth);

     

    ‘Guidelines’ refers to the
guidelines for the Program, if any, as described in the Schedule;

     

    ‘Input Tax Credit’ has the
meaning given in section 195-1 of the GST Act;

     

    ‘Intellectual Property Rights’
includes all copyright (including rights in relation to phonograms and
broadcasts), all rights in relation to inventions (including patent rights),
plant varieties, registered and unregistered trademarks (including service
marks), designs, circuit layouts, and all other rights resulting from
intellectual activity in the industrial, scientific, literary or artistic fields
but does not include Moral Rights, the rights of performers or rights in
relation to Confidential Information;

     

    ‘Interest’ means interest
calculated at an interest rate equal to the general interest charge rate for a
day pursuant to section 8AAD of the Tax Administration Act 1953
(Cth), plus 1%, on a daily compounding basis;

     

    ‘Material’ means the subject
matter of any category of Intellectual Property Rights and includes documents,
equipment, software (including source code and object code), goods, information
and data stored by any means including all copies and extracts of the
same;

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        7

        
          

        

      

      
         


      

    


    ‘Milestone’ means a stage of
completion of the Activity set out in the Schedule;

     

    ‘Moral Rights’ includes the
following rights of an author of copyright Material:

     

    
      	
            	
              (a)

            	
              the
      right of attribution of authorship;

            


    

     

    
      	
            	
              (b)

            	
              the
      right of integrity of authorship;

            


    

     

    
      	
            	
              (c)

            	
              the
      right not to have authorship falsely
attributed;

            


    

     

    ‘Objectives’ means the
objectives described in the Schedule, which are the agreed results the
Organisation must achieve;

     

    ‘Organisation’ means ZBB Technologies Ltd ABN 57
008 958 254 and, where the context admits, includes the Organisation’s officers,
employees, agents, volunteers and subcontractors and its
successors;

     

    ‘Organisation’s Contributions’
means the contributions, if any, specified in the Schedule that are
provided by the Organisation for the purposes of the Activity;

     

    ‘Other Contributions’ means
the financial or in-kind resources (with in-kind resources valued at cost),
other than the Funding or any Organisation’s Contributions, which are specified
in the Schedule and are used by the Organisation for the Activity;

     

    ‘Party’ means a party to this
Agreement;

     

    ‘Personal Information’ has the
same meaning as under the Privacy Act, which currently is information or an
opinion (including information or an opinion forming part of a data base),
whether true or not, and whether recorded in a material form or not, about an
individual whose identity is apparent, or can reasonably be ascertained, from
the information or opinion;

     

    ‘Principles’ refers to the
principles of the Program, if any, as described in the Schedule;

     

    ‘Privacy Act’ refers to the
Privacy Act
1988 (Cth);

     

    ‘Privacy Commissioner’ means
the Office of the Privacy Commissioner established under the Privacy Act and
includes any other entity that may, from time to time, perform the functions of
that Office;

     

    ‘Program’ means the part of
the Department’s operations specified in the Schedule under which the
Commonwealth is able to give the Funding to the Organisation;

     

    ‘Qualified Accountant’ means a
person who is a member of the Institute of Chartered Accountants in Australia,
or of CPA Australia or the National Institute of Accountants;

     

    ‘Records’ includes documents,
information and data stored by any means and all copies and extracts of the
same;

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        8

        
          

        

      

      
         


      

    


    ‘Report’ means Activity
Material that is provided to the Department for reporting purposes on matters as
stipulated in the Schedule;

     

    ‘Schedule’ refers to the
schedule to this Agreement and may include Annexures and incorporate other
documents including by reference;

     

    ‘Specified Personnel’ means
the personnel (whether the Organisation’s officers, employees or
subcontractors), or people with specific skills, specified in the Schedule as
personnel required to undertake the Activity or any part of the work
constituting the Activity;

     

    ‘Tax Invoice’ has the meaning
given in section 195-1 of the GST Act;

     

    ‘Taxable Supply’ has the
meaning given in section 195-1 of the GST Act;

     

    ‘Term of this Agreement’
refers to the period described in subclause 2.1;

     

    ‘Third Party Interest’ means
any legal or equitable right, interest, power or remedy in favour of any person
other than the Organisation or the Commonwealth 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;

     

    ‘Undepreciated’ in relation to
the value of an Asset, means the value of the Asset which has not been
Depreciated;

     

    
      	
              1.2

            	
              In
      this Agreement, unless the contrary intention
  appears:

            


    

     

    
      	
               
      

            	
              (a)

            	
              words
      in the singular number include the plural and words in the plural number
      include the singular;

            


    

     

    
      	
               
      

            	
              (b)

            	
              words
      importing a gender include any other
gender;

            


    

     

    
      	
               
      

            	
              (c)

            	
              words
      importing persons include a partnership and a body whether corporate or
      otherwise;

            


    

     

    
      	
               
      

            	
              (d)

            	
              all
      references to clauses are clauses in this
  Agreement;

            


    

     

    
      	
               
      

            	
              (e)

            	
              all
      references to dollars are to Australian dollars and this Agreement uses
      Australian currency;

            


    

     

    
      	
               
      

            	
              (f)

            	
              reference
      to any statute or other legislation (whether primary or subordinate) is to
      a statute or other legislation of the Commonwealth and, if it has been or
      is amended, modified or repealed and other legislation substituted, is a
      reference to that statute or other legislation as amended, modified or
      substituted;

            


    

     

    
      	
               
      

            	
              (g)

            	
              an
      uncertainty or ambiguity in the meaning of a provision of this Agreement
      will not be interpreted against a Party just because that Party prepared
      the provision; and

            


    

     

    
      	
               
      

            	
              (h)

            	
              where
      any word or phrase is given a defined meaning, any other part of speech or
      other grammatical form in respect of that word or phrase has a
      corresponding meaning.

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        9

        
          

        

      

      
         


      

    


    
      1.3 The
Schedule (and Annexures and documents incorporated by reference, if any) form
part of this Agreement. In the event of any conflict or inconsistency between
any part of:

    

     

    
      	
               
      

            	
              (a)

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

            


    

     

    
      	
               
      

            	
              (b)

            	
              the
      Schedule;

            


    

     

    
      	
               
      

            	
              (c)

            	
              the
      Annexures, if any;

            


    

     

    
      	
               
      

            	
              (d)

            	
              other
      documents including those incorporated by reference, if
    any;

            


    

     

    then the
material mentioned in any one of paragraphs (a) to (d) of this subclause 1.3 has
precedence over material mentioned in a subsequent paragraph, to the extent of
any conflict or inconsistency.

     

    
      	
              2.

            	
              TERM
      OF THIS AGREEMENT

            


    

     

    
      	
              2.1

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

            


    

     

    
      	
              3.

            	
              OTHER
      AUSTRALIAN GOVERNMENT FUNDING

            


    

     

    
      3.1 If
the Organisation receives any funding (other than the Funding) from the
Australian Government, a breach of any other arrangement (whether contractual or
statutory) with the Commonwealth under which the Organisation receives
Commonwealth funding may be regarded by the Department as a breach of this
Agreement.

    

     

    
      3.2 The
Organisation must inform the Department in writing within 20 Business Days of
entering into any other arrangement (whether contractual or statutory) under
which the Organisation is entitled to receive funding from the
Commonwealth.

    

     

    
      	
              3.3

            	
              Any
      payments under this Agreement may be deferred or suspended by the
      Department in whole or in part if:

            


    

     

    
      	
               
      

            	
              (a)

            	
              the
      Organisation has outstanding or unacquitted moneys under any arrangement
      (whether contractual or statutory) with the Commonwealth, including
      between the Department and the Organisation, under which the Organisation
      receives Australian Government funding;
or

            


    

     

    
      	
               
      

            	
              (b)

            	
              financial
      statements that the Organisation provides to the Department as part of the
      Reports, or at the Department’s request, indicate that the Organisation
      currently has unspent Funds.

            


    

     

    Notwithstanding
such suspension or deferral of any payments, the Organisation must continue to
perform any obligations under this Agreement, unless the Department agrees
otherwise in writing.

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    
      	
              4.

            	
              PAYMENT

            


    

     

    
      4.1
Subject to sufficient funds being available for the Program, and compliance by
the Organisation with this Agreement (including the invoicing requirements, if
any, specified in the Schedule) the Commonwealth will provide the Organisation
with the Funding at the times and in the manner specified in the
Schedule.

    

     

    
      4.2
Without limiting its rights, the Commonwealth may withhold or suspend any
payment in whole or in part until the Organisation has performed its obligations
(including its obligations to provide any Reports or financial acquittals) under
this Agreement to the satisfaction of the Department.

    

     

    
      4.3
Notwithstanding any such withholding or suspension of any payments, the
Organisation must continue to perform its obligations under this Agreement,
unless the Department agrees otherwise in writing.

    

     

    
      	
              5.

            	
              MANAGEMENT
      OF FUNDING

            


    

     

    
      	
              5.1

            	
              The
      Organisation must carry out the
Activity:

            


    

     

    
      	
               
      

            	
              (a)

            	
              within
      the Activity Period and in accordance with this Agreement (including any
      applicable Principles and
Guidelines);

            


    

     

    
      	
               
      

            	
              (b)

            	
              diligently,
      effectively and to a high professional
standard;

            


    

     

    
      	
               
      

            	
              (c)

            	
              so
      as to meet the Milestones and timeframes, and any other performance
      requirements, for the Activity specified in the Schedule;
    and

            


    

     

    
      	
               
      

            	
              (d)

            	
              in
      good faith so as to achieve the Objectives specified in the
      Schedule.

            


    

     

    
      5.2 Where
the Commonwealth is satisfied that the Organisation does not have the capacity
to manage the Funding, the Commonwealth may immediately suspend, reduce or cease
the release of Funding to the Organisation on providing the Organisation with
written notice of this decision.

    

     

    
      5.3 Where
the Commonwealth is satisfied that the Activity (or part of the Activity) is
unable to be performed by the Organisation in accordance with this Agreement,
the Funding relating to the Activity (or part of the Activity) must be repaid to
the Commonwealth upon demand.

    

     

    
      	
              5.4

            	
              The
      Funding must be spent by the Organisation
only:

            


    

     

    (a)           for
the Activity;

     

    (b)           in
accordance with the Budget; and

     

    (c)           in
accordance with this Agreement.

     

    
      	
              5.5

            	
              The
      Organisation must:

            


    

     

    
      	
               
      

            	
              (a)

            	
              ensure
      that the Funds are held in an account in the Organisation’s name, and
      which the Organisation solely controls, with an authorised deposit-taking
      institution authorised under the Banking Act
      1959 (Cth) to carry on banking business in
    Australia;

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        11

        
          

        

      

      
         


      

    


     

    
      	
               
      

            	
              (b)

            	
              unless otherwise
      stated in the Schedule, ensure that the account referred
      to in paragraph 5.5(a)
is:

            


    

     

    
      	
               
      

            	
              (i)

            	
              established
      solely for the purposes of accounting for, and administering, any Funding
      provided by the Commonwealth to the Organisation under this Agreement;
      and

            


    

     

    
      	
               
      

            	
              (ii)

            	
              separate
      from the Organisation’s other operational
  accounts;

            


    

     

    
      	
               
      

            	
              (c)
      

            	
              notify the
      Department, in writing, prior to the receipt of any Funds, of
      details sufficient to identify the
      account;

            


    

     

    
      (d)
provide written notification to the authorised deposit-taking institution at
which the account is established that the Funds are funds held for the purposes
of the Activity and provide a copy of that notification to the
Department;

    

     

    
      	
               
      

            	
              (e)

            	
              provide
      the Department and the authorised deposit-taking institution with an
      authority for the Commonwealth to obtain any details relating to any use
      of the account;

            


    

     

    
      	
               
      

            	
              (f)

            	
              if
      the account changes, notify the Department in writing within 10 Business
      Days of the change occurring providing the Department with details of the
      new account and comply with paragraph 5.5(e) above in respect to the new
      account;

            


    

     

    
      	
               
      

            	
              (g)

            	
              unless
      the Organisation is a sole director company, ensure that at a minimum two
      signatories, who have the Organisation’s authority to do so, are required
      to operate the account; and

            


    

     

    
      	
               
      

            	
              (h)

            	
              identify
      the receipt and expenditure of the Funds separately within the
      Organisation’s accounting Records so that at all times the Funds are
      identifiable and ascertainable.

            


    

    


    
      	
              5.6

            	
              The
      Organisation must keep financial accounts and Records relating to the
      Activity so as to enable:

            


    

     

    
      	
               
      

            	
              (a)

            	
              all
      receipts and payments related to the Activity to be identified in the
      Organisation’s accounts and reported in accordance with this
      Agreement;

            


    

     

    
      	
               
      

            	
              (b)

            	
              unless
      notified by the Commonwealth, the preparation of financial statements in
      accordance with Australian Accounting Standards
  including:

            


    

     

    
      	
               
      

            	
              (i)

            	
              an
      income and expenditure statement for the Financial Year(s) to date
      compared with the Budget; and

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        12

        
          

        

      

      
         


      

    


    
      (ii) a
schedule of the Assets acquired, sold, written-off or otherwise disposed of
during the Financial Year(s) to date compared with the Budget;
and

    

     

    
      	
               
      

            	
              (c)

            	
              the
      audit of those Records in accordance with Australian Auditing
      Standards.

            


    

     

    
      5.7 The
Organisation must do all things necessary to ensure that all payments from the
Funds that the Organisation makes to third parties are correctly made and
properly authorised and that the Organisation maintains proper and diligent
control over the incurring of all liabilities. Except with the Department’s
prior written approval, the Organisation must not use any of the following as
any form of security for the purpose of obtaining or complying with any form of
loan, credit, payment or other interest:

    

     

    
      	
               
      

            	
              (a)

            	
              the
      Funds;

            


    

     

    
      	
               
      

            	
              (b)

            	
              this
      Agreement or any of the Commonwealth’s obligations under this Agreement;
      or

            


    

     

    
      	
               
      

            	
              (c)

            	
              any
      Assets or Intellectual Property Rights in Activity
    Material.

            


    

     

    
      	
              5.8

            	
              If,
      at any time during the Term of this Agreement the Commonwealth determines
      that:

            


    

     

    
      	
               
      

            	
              (a)

            	
              there
      remains an amount of Funding in the account referred to in paragraph
      5.5(a) that has not been spent or legally committed for expenditure in
      accordance with this Agreement; or

            


    

     

    
      	
            	
              (b)

            	
              Funds
      have not been spent in accordance with this Agreement; then at the
      Commonwealth’s discretion this amount must
be:

            


    

     

    
      	
               
      

            	
              (c)

            	
              refunded
      by the Organisation to the Commonwealth within 20 Business Days of a
      written notice from the Commonwealth;
or

            


    

     

    
      	
               
      

            	
              (d)

            	
              otherwise
      dealt with as directed in writing by the
  Commonwealth;

            


    

     

    or the
Commonwealth may reduce further payments of Funding to the Organisation by up to
this amount.

     

    
      5.9 If
the Commonwealth notifies the Organisation that the amount is to be refunded to
the Commonwealth and the amount is not refunded to the Commonwealth within 20
Business Days, Interest will accrue and be payable, unless the Commonwealth
notifies the Organisation otherwise, on the amount after the expiry of the 20
Business Days, until the amount is paid in full.

    

     

    
      5.10 If
at the completion of the Activity Period the Organisation has Funds (which does
not include those Funds legally committed for expenditure in accordance with
this Agreement and which fall for payment thereafter), the Organisation must
seek the Commonwealth’s agreement to retain the Funds and use them for purposes
agreed by the Commonwealth.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        13

        
          

        

      

      
         


      

    


    
      5.11 If
the Commonwealth does not agree to the Organisation retaining the Funds under
subclause 5.10, the Organisation must return the Funds to the Commonwealth
within 20 Business Days of a notice requiring the Organisation to return the
Funds and if the Funds are not refunded to the Commonwealth within 20 Business
Days, Interest will accrue and be payable, unless the Commonwealth notifies the
Organisation otherwise, on the amount outstanding after the expiry of the 20
Business Days, until the amount is paid in full.

    

     

    
      5.12 Any
amount owed to the Commonwealth under subclause 5.8, and any Interest owed under
subclauses 5.9 or 5.11, will, without prejudice to any other rights available to
the Commonwealth under this Agreement or at law or in equity, be recoverable by
the Commonwealth as a debt due to the Commonwealth by the Organisation without
further proof of the debt by the Commonwealth being
necessary.

    

     

    
      5.13
During the Term of this Agreement, the Organisation may make a transfer of Funds
between expenditure items within the Budget subject to the following
limitations:

    

     

    
      	
               
      

            	
              (a)

            	
              the
      Organisation must seek approval in writing from the Department for any
      transfer that exceeds 10% of the total Funds for the Financial Year in
      which the transfer would occur; and

            


    

     

    
      	
               
      

            	
              (b)

            	
              the
      total amount of transfers in any Financial Year shall not exceed 20% of
      the total Funds for that Financial
Year.

            


    

     

    
      5.14 The
Commonwealth is not responsible for the provision of any money or resources in
excess of the Funds. The Organisation accepts responsibility for the provision
of any additional funds which may be required to complete the
Activity.

    

     

    
      5.15 The
Organisation agrees to provide any security for the performance of its
obligations under this Agreement as may be requested by the
Commonwealth.

    

     

    
      	
              5.16

            	
              The
      operation of this clause 5 survives the expiration or earlier termination
      of the Term of this Agreement.

            


    

     

    
      	
              6.

            	
              ORGANISATION’S
      CONTRIBUTIONS AND OTHER
CONTRIBUTIONS

            


    

     

    
      	
              6.1

            	
              The
      Organisation must provide the Organisation’s Contributions for the
      Activity.

            


    

     

    
      	
              6.2

            	
              It
      is a condition precedent to the payment of Funds under this Agreement
      that:

            


    

     

    
      (a) the
Organisation must ensure that the people (if any and other than the
Commonwealth), identified in Item 3 of the Schedule, provide the Department with
satisfactory written evidence that they will provide the Other Contributions,
including the amounts to be provided, their due dates for each of these amounts
and the terms and conditions of the provision of the Other Contributions;
and

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        14

        
          

        

      

      
         


      

    


     

    
      	
               
      

            	
              (b)

            	
              the
      terms and conditions on which these Other Contributions are to be provided
      must be satisfactory to the
Department.

            


    

     

    
      6.3 The
written confirmation referred to in subclause 6.2 must be provided to the
Department within 20 Business Days of the Date of this Agreement, failing which
this Agreement will be treated as void and as never having been entered
into.

    

     

    
      	
              6.4

            	
              The
      Organisation must use all reasonable endeavours to obtain Other
      Contributions sufficient to enable the completion of the
      Activity.

            


    

     

    
      6.5 If
the Organisation is not able to provide the Organisation’s Contributions or
obtain Other Contributions or provide or obtain them in time to enable
completion of the Activity, then the Commonwealth may:

    

     

    
      	
               
      

            	
              (a)

            	
              suspend
      payment of the Funds or an instalment of the Funds (as the case may be)
      until the Organisation’s Contributions are provided or the Other
      Contributions are received; or

            


    

     

    
      	
               
      

            	
              (b)

            	
              terminate
      this Agreement in accordance with clause
21.

            


    

     

    
      6.6 The
Organisation must inform the Department in writing within 10 Business Days of
entering into any arrangement (whether contractual or statutory) under which the
Organisation is entitled to receive any additional monetary or in-kind
contributions in respect of the Activity that are not identified in the
Schedule. Any such additional contribution that the Organisation becomes
entitled to receive after the Date of this Agreement constitute Other
Contributions for the purposes of this Agreement (and the Schedule is deemed to
be varied accordingly) on the date on which the Organisation notifies the
Department of that contribution under this subclause 6.6.

    

     

    
      6.7 The
Organisation must undertake such demonstration/communication activities
associated with the Activity or the Program as specified in the
Schedule.

    

     

    
      	
              6.8

            	
              The
      Organisation must include any Organisation’s Contributions or Other
      Contributions in the Budget in Item 4 of the
  Schedule.

            


    

     

    
      	
              7.

            	
              ASSETS

            


    

     

    
      7.1 The
Organisation must not use the Funding to acquire any Asset, apart from those
detailed in the Schedule, without getting the Department’s prior written
approval. Approval may be given subject to any conditions the Department may
impose.

    

     

    
      7.2
Unless it is specified in the Schedule or the Commonwealth later agrees that the
Commonwealth or a third party owns the Asset then, subject to this clause 7 and
the terms of any relevant lease, the Organisation owns any Asset it acquires
with the Funding subject to:

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        15

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (a)

            	
              its
      continued use for the purposes of this Agreement;
  and

            


    

     

    
      	
               
      

            	
              (b)

            	
              any
      requirement to transfer all or any of the Assets if the Organisation is
      required by the Commonwealth to do so pursuant to this
      Agreement.

            


    

     

    
      	
              7.3

            	
              If
      the Commonwealth or a third party owns the Asset, or the Asset is leased
      by the Organisation from a third party,
then:

            


    

     

    
      	
               
      

            	
              (a)

            	
              if
      the Commonwealth or a third party owns the Asset, subclauses 7.6, 7.9 and
      7.10 do not apply;

            


    

     

    
      	
               
      

            	
              (b)

            	
              if
      the Asset is leased, the Organisation must ensure that the terms of the
      lease are consistent with this clause 7 except for subclauses 7.6, 7.7,
      7.9 and 7.10.

            


    

     

    
      	
              7.4

            	
              During
      the Activity Period the Organisation must use each Asset inaccordance
      with this Agreement and for the purposes of the
  Activity.

            


    

     

    
      	
              7.5

            	
              The
      Organisation must:

            


    

     

    
      	
               
      

            	
              (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 Department’s prior written
      approval;

            


    

     

    
      	
               
      

            	
              (b)

            	
              hold
      all Assets securely and safeguard them against theft, loss, damage, or
      unauthorised use;

            


    

     

    
      	
               
      

            	
              (c)

            	
              maintain
      all Assets in good working order;

            


    

     

    
      	
               
      

            	
              (d)

            	
              (unless
      a specific exemption is given by the Department) maintain all appropriate
      insurances for all Assets to their full replacement value noting the
      Commonwealth’s interest, if any, in the Asset under this Agreement and
      provide satisfactory evidence of this on request from the
      Commonwealth;

            


    

     

    
      	
               
      

            	
              (e)

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

            


    

     

    
      	
               
      

            	
              (f)

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

            


    

     

    
      	
               
      

            	
              (g)

            	
              if
      specified in the Schedule, maintain an Assets register in the form and
      containing the details as described in the Schedule;
  and

            


    

     

    
      	
               
      

            	
              (h)

            	
              as
      and when requested by the Department, provide copies of the Assets
      register to the Department.

            


    

     

    
      7.6 If
the Organisation sells or otherwise disposes of an Asset during the Term of the
Agreement (which must be with the Department’s prior written consent and subject
to any conditions the Department may impose) and at the time of the sale or
disposal the Asset has not been fully Depreciated the Organisation must pay to
the Department or as the Department may direct in writing, within 20 Business
Days of the date of the sale or disposal, an amount equal to the proportion of
the Undepreciated value of the Asset, that is equivalent to the proportion of
the price or cost of the Asset that was funded from the
Funding.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        16

        
          

        

      

      
         


      

    


    7.7 If
any of the Assets are lost, damaged or destroyed, the Organisation must
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
acquisition cost of the Asset that was met by the Funding, must be notified to
the Department and used and accounted for as Activity Generated Income under
this Agreement.

     

    
      7.8 On
completion of the Activity Period, completion of the Activity or earlier
termination of this Agreement, whichever is the earliest, the Commonwealth may
require the Organisation to deal with the Assets as the Department may, at its
sole discretion, direct in writing.

    

     

    
      7.9
Subject to clause 7.8 if, on completion of the Activity or earlier termination
of the Term of this Agreement, an Asset has not been fully Depreciated the
Organisation must pay to the Department or as the Department may direct in
writing, within 20 Business Days after completion of the Activity or earlier
termination of the Term of this Agreement, an amount equal to the proportion of
the Undepreciated value of the Asset, that is equivalent to the proportion of
the price or cost of the Asset that was funded from the
Funding.

    

     

    
      7.10
Amounts payable to the Commonwealth under subclauses 7.6 and 7.9 form part of
the Funds and are recoverable as such. If the Organisation fails to make payment
as required by either subclauses 7.6 or 7.9:

    

     

    
      	
               
      

            	
              (a)

            	
              the
      Organisation must pay the Commonwealth the Interest on the relevant amount
      from the date it was due, for the period it remains unpaid;
      and

            


    

     

    
      	
               
      

            	
              (b)

            	
              the
      relevant amount, and Interest owed under this clause, will, without
      prejudice to any other rights available to the Commonwealth under this
      Agreement or at law or in equity, be recoverable by the Commonwealth as a
      debt due to it by the Organisation.

            


    

     

    
      7.11 The
Department’s approvals under subclause 7.1 and paragraph 7.5(a) will not be
unreasonably withheld. A decision as to whether an approval will be provided
will be made within a reasonable time of the request.

    

     

    
      	
              7.12

            	
              The
      operation of this clause 7 survives the expiration or earlier termination
      of the Term of this Agreement.

            


    

     

    
      	
              8.

            	
              RECORDS

            


    

     

    
      8.1 The
Organisation must keep full and accurate accounts and Records of the conduct of
the Activity including, without limitation, the progress against the Milestones,
the receipt and use of Funding, the Organisation’s Contributions (if any) and
Other Contributions (if any), the acquisition of Assets and the creation of
Intellectual Property Rights in Activity Material.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        17

        
          

        

      

      
         


      

    


    8.2
Records and accounts maintained under subclause 8.1 must be retained by the
Organisation for a period of no less than 7 years after the end of the Activity
Period.

     

    
      	
              8.3

            	
              The
      operation of this clause 8 survives the expiration or earlier termination
      of the
      Term of this Agreement.

            


    

     

    
      	
              9.

            	
              REPORTING

            


    

     

    
      9.1 The
Organisation must provide to the Department periodic written Reports at the
times, and containing the information, specified in Item 5 of the
Schedule.

    

     

    
      	
              9.2

            	
              Within
      60 Business Days after:

            


    

     

    
      (a) the
expiry of the Activity Period, completion of the Activity or any termination of
the Term of this Agreement, whichever is the earliest; and

    

     

    
      	
               
      

            	
              (b)

            	
              the completion of
      each Financial Year in which a payment of Funding
      is made,

            


    

     

    the Organisation must provide the Department with:

     

    (c)
audited financial statements of income and expenditure in respect of the
Funding, the Organisation’s Contributions (if any) and the Other Contributions
(if any) (separately and in the context of the Organisation’s overall financial
position), which must include a definitive statement as to whether:

     

    
      	
               
      

            	
              (i)

            	
              the
      financial information for the Activity represents the financial
      transactions fairly and is based on proper accounts and Records;
      and

            


    

     

    
      	
               
      

            	
              (ii)

            	
              the
      Funding was expended for the Activity and in accordance with the
      Agreement.

            


    

     

    
      (d) a
statement of financial position (assets and liabilities by class), which must
include, under assets, the balance of the Organisation’s account referred to in
paragraph 5.5(a);

    

     

    
      	
               
      

            	
              (e)

            	
              a
      statement of how much the Organisation needs to meet current liabilities
      under legal commitments entered into by it pursuant to this
      Agreement;

            


    

     

    
      	
               
      

            	
              (f)

            	
              a
      copy of a letter to the Organisation from the Approved Auditor, or a
      report from the Approved Auditor,
including:

            


    

    
      	
               
      

            	
              (i)

            	
              specific
      comment on the adequacy of financial controls being maintained by the
      Organisation;

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        18

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              (ii)

            	
              specific
      comment on the Organisation’s financial position as it relates to any
      issues affecting its ability to repay surplus Funds or complete the
      Activity with available Funds; and

            


    

     

    
      	
               
      

            	
              (iii)

            	
              where
      there are any qualifications or limitations on the audit, an outline of
      the reason(s) for the qualifications or limitations and the remedial
      action recommended;

            


    

     

    
      	
            	
              (g)

            	
              any
      other financial information specified in Item 5 of the
      Schedule.

            


    

     

    
      	
              9.3

            	
              Information
      required to be provided under subclauses 9.1 and 9.2 must be accompanied
      by a certificate that:

            


    

     

    
      	
               
      

            	
              (a)

            	
              all
      Funding received was spent for the purpose of the Activity and in
      accordance with this Agreement and that the Organisation has complied with
      this Agreement;

            


    

     

    
      	
               
      

            	
              (b)

            	
              salaries
      and allowances paid to persons involved in the Activity are in accordance
      with any applicable award or agreement in force under any relevant law on
      industrial or workplace relations;

            


    

     

    
      	
               
      

            	
              (c)

            	
              unless
      the Activity Period has expired or the Agreement has been terminated, the
      unspent portion of the Funds (if any) is available for use within the next
      Reporting period;

            


    

     

    
      	
               
      

            	
              (d)

            	
              the
      financial information is presented in accordance with any other financial
      Reporting requirements the Department may notify to the
      Organisation;

            


    

     

    
      	
               
      

            	
              (e)

            	
              where
      an Asset has been acquired with the Funds, paragraphs 7.5(d) and (g)
      (where applicable) have been complied with in respect to the
      Asset.

            


    

     

    
      9.4 The
audit referred to in paragraph 9.2(c), and the certificate referred to in
subclause 9.3, must also contain the requirements, if any, described in the
Schedule.

    

     

    
      9.5 The
audit referred to in paragraph 9.2(c) must be carried out by an Approved Auditor
and must comply with the Australian Auditing Standards. The financial statements
referred to in paragraphs 9.2(c), (d) and (e) must be prepared in accordance
with Australian Accounting Standards and must, if requested by the Department,
be prepared by a Qualified Accountant, who must also be a person acceptable to
the Department.

    

     

    
      	
              9.6

            	
              The
      certificate referred to in subclause 9.3 must be
  provided:

            


    

    
      (a) if
the Organisation is an incorporated body, by its Chairperson, Chief Executive
Officer, Chief Financial Officer or a person authorised by the Organisation to
execute documents and legally bind the Organisation by their execution.
Satisfactory evidence of the authorisation is to be provided to the Department
before certification; [If
Funding a state/territory under this Agreement, substitute the following wording in this part (a):
“by the Chief Financial Officer of the [insert the relevant state/territory
Department]”.)

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        19

        
          

        

      

      
         


      

    

     

    (b)             if
the Organisation is a partnership, by:

     

    
      	
               
      

            	
              (i)

            	
              a
      majority of the members; or

            


    

     

    
      	
               
      

            	
              (ii)

            	
              by
      a person or persons authorised by a majority of the members to act on
      behalf of the members in accordance with the Organisation’s rules.
      Satisfactory evidence of the authorisation is to be provided to the
      Commonwealth before certification;

            


    

     

    
      (c) if
the Organisation is a joint venture, the Chief Executive Officer or Chief
Financial Officer of each joint venturer must certify the one statement;
or

    

     

    (d)             if
the Organisation is an individual, by that individual.

     

    
      9.7 The
Commonwealth may require the establishment of a steering committee whose
establishment, membership, role and responsibilities are specified in the
Schedule.

    

     

    
      	
              9.8

            	
              The
      Organisation agrees to liaise with and report regularly to any steering
      committee established under subclause
9.7.

            


    

     

    
      	
              9.9

            	
              The
      operation of this clause 9 survives the expiration or earlier termination
      of the Term of this Agreement.

            


    

     

    10
TAXES, DUTIES AND GOVERNMENT CHARGES

     

    
      10.1
Subject to this clause 10, all taxes, duties and government charges imposed or
levied in Australia or overseas in connection with this Agreement must be borne
by the Organisation.

    

     

    
      	
              10.2

            	
              The
      Organisation warrants that it has an ABN that it has correctly quoted to
      the Department.

            


    

     

    
      10.3 The
Department is registered in accordance with the GST Act and will notify the
Organisation of any change in its ABN(s) or GST registration status immediately
after it is notified of any change. The Organisation must notify the Department
in writing of any change to the Organisation’s ABN or GST registration
immediately after it is notified of any change.

    

     

    
      10.4 The
Funds paid by the Commonwealth under this Agreement include GST for supplies
provided by the Organisation to the Commonwealth in accordance with this
Agreement that are Taxable Supplies within the meaning of the GST
Act.

    

     

    
      10.5 The
Organisation must give the Department a Tax Invoice in accordance with the GST
Act in relation to any Taxable Supply made by the Organisation to the
Commonwealth in connection with this Agreement prior to payment of Funds by the
Commonwealth.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        20

        
          

        

      

      
         


      

    


    
      	
              10.6

            	
              No
      Party may claim from the other an amount for which the first Party may
      claim an Input Tax Credit.

            


    

     

    
      10.7 Any
refund under subclause 5.8 must be inclusive of GST and must be accompanied by
any Adjustment Note required under the GST Act relating to Taxable Supplies for
which the Organisation previously issued the Department a Tax
Invoice.

    

     

    
      	
              10.8

            	
              The
      Organisation should be aware that,
generally:

            


    

     

    
      	
               
      

            	
              (a)

            	
              Funding
      received by the Organisation is included in the Organisation’s assessable
      income if it is received in relation to the carrying on of a business,
      unless the Organisation is specifically exempt from income
      tax;

            


    

     

    
      	
               
      

            	
              (b)

            	
              any
      capital gain on a disposal of an Asset is included in the Organisation’s
      assessable income, unless the Organisation is specifically exempt from
      income tax;

            


    

     

    
      	
               
      

            	
              (c)

            	
              The
      Organisation may be required, in respect of an employee, to pay fringe
      benefits tax and make superannuation contributions to a complying
      superannuation fund or pay the superannuation guarantee charge to the
      Australian Taxation Office.

            


    

     

    
      	
              11.

            	
              AUSTRALIAN
      GOVERNMENT MATERIAL

            


    

     

    
      11.1
Ownership of all Australian Government Material, including Intellectual Property
Rights in that Material, remains vested at all times in the Commonwealth but the
Commonwealth grants the Organisation a licence to use, copy and reproduce that
Material only for the purposes of this Agreement and in accordance with any
conditions or restrictions specified in the Schedule.

    

     

    
      11.2 Upon
the expiration of the Activity Period or earlier termination of the Term of the
Agreement, the Organisation may retain all Australian Government Material
remaining in the Organisation’s possession, unless otherwise specified in the
Schedule.

    

     

    
      	
              11.3

            	
              The
      Organisation must keep safely and maintain Australian Government Material
      the Organisation has been given for the purposes of this
      Agreement.

            


    

     

    
      	
              11.4

            	
              The
      operation of this clause 11 survives the expiration or earlier termination
      of the Term of this Agreement.

            


    

     

    
      	
              12.

            	
              INTELLECTUAL
      PROPERTY

            


    

     

    
      12.1
Subject to this clause 12, as between the Commonwealth and the Organisation (but
without affecting the position between the Organisation and a third party)
Intellectual Property Rights in Activity Material vest immediately in the
Organisation.

    

     

    
      	
              12.2

            	
              Subject
      to clause 12.3A, the Organisation grants to the Commonwealth, or will
      procure a grant to the Commonwealth of, a free, non-exclusive licence to
      use, reproduce and adapt the Activity Material and Existing Material for
      internal Commonwealth purposes
only.

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        21

        
          

        

      

      
         


      

    


    12.3
Other than as expressed in clauses 12.2 and 12.3A, this clause 12 does not
affect the ownership of any Intellectual Property Rights in any Existing
Material, which is specified in the Schedule.

     

    
      
        	
                12.3A.

              	
                In
      the event that the Organisation fails to further develop the Activity
      Material to a point where technology or a product based on the Activity
      Material or enhancements to the Activity Material is commercially
      available for use in Australia within 24 months of the end of the Activity
      Period or such other period as the Commonwealth may allow, unless the
      Commonwealth indicates in writing that it is satisfied with the level of
      development reached at the end of that period the Organisation grants to
      the Commonwealth, or will procure a grant to the Commonwealth of, a
      permanent, irrevocable, free, world wide, non-exclusive licence (including
      a right of sub-licence) to use, reproduce, adapt and exploit the
      Intellectual Property Rights in Activity Material and Existing Material
      for any Commonwealth purpose.

              


      

    

     

    
      	
              12.4

            	
              The
      Organisation:

            


    

     

    
      	
               
      

            	
              (a)

            	
              must,
      if requested by the Department to do so, bring into existence, sign,
      execute or otherwise deal with any document which may be necessary or
      desirable to give effect to this clause
12;

            


    

     

    
      	
               
      

            	
              (b)

            	
              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
  12;

            


    

     

    
      	
               
      

            	
              (c)

            	
              except
      as expressly provided for in this Agreement, must not deal with the
      Intellectual Property Rights in the Activity Material during the Term of
      this Agreement; and

            


    

     

    
      	
               
      

            	
              (d)

            	
              agrees
      that it shall not act in a manner inconsistent with the rights granted to
      it under this clause 12.

            


    

     

    
      12.5 For
the purposes of this clause 12, the ‘Specified Acts’ means any of the following
classes or types of acts or omissions by or on behalf of the
Commonwealth:

    

     

    
      	
               
      

            	
              (a)

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

            


    

     

    
      	
               
      

            	
              (b)

            	
              supplementing
      the Activity Material with any other
Material;

            


    

     

    
      	
               
      

            	
              (c)

            	
              using
      the Activity Material in a different context to that originally
      envisaged;

            


    

     

    but does
not include false attribution of authorship.

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        22

        
          

        

      

      
         


      

    

     

    
      	
               12.6

            	
              The
      Organisation agrees:

            


    

    


    
      	
               
      

            	
              (a)

            	
              to
      obtain from each author of any Activity Material a written consent which
      extends directly or indirectly to the performance of the Specified Acts by
      the Commonwealth or any person claiming under or through the Commonwealth
      (whether occurring before or after the consent is given);
    and

            


    

     

    
      	
               
      

            	
              (b)

            	
              upon
      request, to provide the executed original of any such consent to the
      Department.

            


    

     

    
      	
              12.7

            	
              This
      clause 12 does not apply to any Australian Government Material
      incorporated in the Activity
Material.

            


    

     

    
      	
              12.8

            	
              The
      operation of this clause 12 survives the expiration or earlier termination
      of the Term of this Agreement.

            


    

     

    13.
CONFIDENTIAL INFORMATION

     

    
      13.1
Subject to clause 13.5, a Party must not, without the prior written consent of
the other Party, use or disclose any Confidential Information of the other
Party.

    

     

    
      13.2 In
giving written consent to use or disclose its Confidential Information, a Party
may impose such conditions as it thinks fit, and the other Party agrees to
comply with these conditions.

    

     

    
      	
              13.3

            	
              A
      Party may at any time require the other Party to arrange
    for:

            


    

     

    (a)           the
other Party’s employees, officers and volunteers;

     

    (b)           the
other Party’s Advisers; or

     

    (c)           any
person with a Third Party Interest;

     

    to give a
written undertaking in the form of a Deed relating to the use and non-disclosure
of the first Party’s Confidential Information.

     

    
      	
              13.4

            	
              If
      a Party receives a request under clause 13.3, it must promptly arrange for
      all such undertakings to be given.

            


    

     

    
      	
              13.5

            	
              The
      obligations on a Party under this clause 13 will not be taken to have been
      breached to the extent that Confidential
  Information:

            


    

     

    
      	
               
      

            	
              (a)

            	
              is
      disclosed by a Party to its Advisers or employees solely in order to
      comply with obligations, or to exercise rights, under this
      Agreement;

            


    

     

    
      	
               
      

            	
              (b)

            	
              is
      disclosed to a Party’s internal management personnel, solely to enable
      effective management or auditing of Agreement-related
      activities;

            


    

     

    
      	
               
      

            	
              (c)

            	
              is
      disclosed by the Department to the Department’s
  Minister;

            


    

     

    
      	
               
      

            	
              (d)

            	
              is
      shared by a Party within its organisation, or in the case of the
      Department with another Commonwealth department or agency, where this
      serves the Party’s legitimate
interests;

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        23

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (e)

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

            


    

     

    
      	
            	
              (f)

            	
              is
      authorised or required by law to be
disclosed;

            


    

     

    
      (g) is
disclosed by a Party and is information in a material form in respect of which
an interest, whether by licence or otherwise, in the Intellectual Property
Rights in relation to that material form, has vested in, or is assigned to, the
Party under this Agreement or otherwise, and that disclosure is permitted by
that licence or otherwise; or

    

     

    
      	
               
      

            	
              (h)

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

            


    

     

    
      	
              13.6

            	
              Where
      a Party discloses Confidential Information to another
    person:

            


    

     

    
      	
            	
              (a)

            	
              pursuant
      to clauses 13.5 (a), (b) or (d)– the disclosing Party
  must:

            


    

     

    
      	
               
      

            	
              (i)

            	
              notify
      the receiving person that the information is Confidential Information;
      and

            


    

     

    
      	
               
      

            	
              (ii)

            	
              not
      provide the information unless the receiving person agrees to keep the
      information confidential; or

            


    

     

    
      	
               
      

            	
              (b)

            	
              pursuant
      to clauses 13.5 (c) or (e) – the disclosing Party must notify the
      receiving person that the information is Confidential
      Information.

            


    

     

    
      13.7 The
Parties may agree in writing after the Date of this Agreement that certain
additional information is to constitute Confidential Information for the
purposes of this Agreement.

    

     

    
      13.8
Where the Parties agree in writing after the Date of this Agreement that certain
additional information is to constitute Confidential Information for the
purposes of this Agreement, that documentation is incorporated into, and becomes
part of this Agreement (and the Schedule is deemed to be varied accordingly), on
the date by which both Parties have signed that
documentation.

    

     

    
      	
              13.9

            	
              The
      obligations under this clause 13 continue, notwithstanding the expiry or
      termination of the Term of this
Agreement:

            


    

     

    
      	
               
      

            	
              (a)

            	
              in
      relation to an item of information described in the Schedule – for the
      period set out in the Schedule in respect of that item;
  and

            


    

     

    
      	
               
      

            	
              (b)

            	
              in
      relation to any information which the Parties agree in writing after the
      Date of this Agreement is to constitute Confidential Information for the
      purposes of this Agreement – for the period agreed by the Organisation and
      the Commonwealth in writing in respect of that
  information.

            


    

     

    
      13.10
Nothing in this clause 13 derogates from any obligation which the Organisation
may have either under the Privacy Act, or under this Agreement, in relation to
the protection of Personal Information.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        24

        
          

        

      

      
         


      

    


    14.
PROTECTION OF PERSONAL INFORMATION

     

    
      14.1 This
clause 14 applies only where the Organisation deals with Personal Information
when, and for the purpose of, conducting the Activity under this
Agreement.

    

     

    
      14.2 The
Organisation agrees to be treated as a 'contracted service provider' within the
meaning of section 6 of the Privacy Act, and agrees in respect to the conduct of
the Activity under this Agreement:

    

     

    
      (a) to
use or disclose Personal Information obtained during the course of conducting
the Activity under this Agreement, only for the purposes of this
Agreement;

    

     

    
      (b) not
to do any act or engage in any practice that would breach an Information Privacy
Principle (IPP) contained in section 14 of the Privacy Act, which if done or
engaged in by an agency, would be a breach of that IPP;

    

     

    
      	
               
      

            	
              (c)

            	
              to
      carry out and discharge the obligations contained in the IPPs as if the
      Organisation were an agency under that
Act;

            


    

     

    
      (d) to
notify individuals whose Personal Information the Organisation holds, that
complaints about the Organisation’s acts or practices may be investigated by the
Privacy Commissioner who has power to award compensation against the
Organisation in appropriate circumstances;

    

     

    
      (e) not
to use or disclose Personal Information or engage in an act or practice that
would breach section 16F (direct marketing), a National Privacy Principle (NPP)
(particularly NPPs 7 to 10) or an Approved Privacy Code (APC), where that
section, NPP or APC is applicable to the Organisation,
unless:

    

     

    
      	
               
      

            	
              (i)

            	
              in
      the case of section 16F - the use or disclosure is necessary, directly or
      indirectly, to discharge an obligation under this Agreement;
      or

            


    

     

    
      	
               
      

            	
              (ii)

            	
              in
      the case of an NPP or an APC - the activity or practice is engaged in for
      the purpose of discharging, directly or indirectly, an obligation under
      this Agreement;

            


    

     

    
      (f) to
disclose in writing to any person who asks, the content of the provisions of
this Agreement (if any) that are inconsistent with an NPP or an APC binding a
Party to this Agreement;

    

     

    
      (g) to
immediately notify the Department if the Organisation becomes aware of a breach
or possible breach of any of the obligations contained in, or referred to in,
this clause 14, whether by the Organisation or any
subcontractor;

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        25

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (h)

            	
              to
      comply with any directions, guidelines, determinations or recommendations
      of the Privacy Commissioner to the extent that they are not inconsistent
      with the requirements of this clause 14;
and

            


    

     

    
      	
               
      

            	
              (i)

            	
              to
      ensure that any of the Organisation’s employees, officers, Advisers or
      volunteers who are required to deal with Personal Information for the
      purposes of this Agreement are made aware of the Organisation’s
      obligations set out in this clause
14.

            


    

     

    
      14.3 The
Organisation agrees to ensure that any subcontract entered into for the purpose
of fulfilling the Organisation’s obligations under this Agreement contains
provisions to ensure that the subcontractor has the same awareness and
obligations as the Organisation has under this clause, including the requirement
in relation to subcontracts.

    

     

    
      14.4 The
Organisation agrees to indemnify the Commonwealth in respect of any loss,
liability or expense suffered or incurred by the Commonwealth which arises
directly or indirectly from a breach of any of the Organisation’s obligations
under this clause 14, or a subcontractor under the subcontract provisions
referred to in subclause 14.3.

    

     

    
      14.5 In
this clause 14, the terms 'agency', 'Approved Privacy Code' (APC), 'Information
Privacy Principles' (IPPs), and 'National Privacy Principles' (NPPs) have the
same meaning as they have in section 6 of the Privacy Act, and ‘subcontract’ and
other grammatical forms of that word has the meaning given in section 95B(4) of
the Privacy Act.

    

     

    
      	
              14.6

            	
              The
      operation of this clause 14 survives the expiration or earlier termination
      of the Term of this Agreement.

            


    

     

    15.
INDEMNITY

     

    
      	
              15.1

            	
              The
      Organisation indemnifies (and keeps indemnified) the Commonwealth against
      any:

            


    

     

    
      	
               
      

            	
              (a)

            	
              loss
      or liability incurred by the
Commonwealth;

            


    

     

    
      	
            	
              (b)

            	
              loss
      of or damage to the Commonwealth’s property;
or

            


    

     

    
      	
               
      

            	
              (c)

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

            


    

     

    arising
from:

     

    
      	
               
      

            	
              (d)

            	
              any
      act or omission by the Organisation in connection with this Agreement,
      where there was fault on the part of the person whose conduct gave rise to
      that liability, loss, damage, or
expense;

            


    

     

    
      	
               
      

            	
              (e)

            	
              any
      breach by the Organisation of its obligations or warranties under this
      Agreement;

            


    

     

    
      	
               
      

            	
              (f)

            	
              the
      use of the Assets; or

            


    

     

    Department
of the Environment and Water Resources Funding Agreement
 

    
      
         


      

      
        26

        
          

        

      

      
         


      

    

     

    
      (g) the
use by the Commonwealth of the Activity Material or Existing Material, including
any claims by third parties about the ownership or right to use Intellectual
Property Rights in Activity Material or Existing Material.

    

     

    
      15.2 The
Organisation’s liability to indemnify the Commonwealth under this clause 15 will
be reduced proportionally to the extent that any fault on the Commonwealth’s
part contributed to the relevant loss, damage, expense, or
liability.

    

     

    
      15.3 The
Commonwealth’s right to be indemnified under this clause 15 is in addition to,
and not exclusive of, any other right, power, or remedy provided by law, but the
Commonwealth is not entitled to be compensated in excess of the amount of the
relevant liability, damage, loss, or expense.

    

     

    
      	
              15.4

            	
              In
      this clause 15, “fault” means any negligent or unlawful act or omission or
      wilful misconduct.

            


    

     

    
      	
              15.5

            	
              This
      operation of this clause 15 survives the expiration or earlier termination
      of the Term of this Agreement.

            


    

     

    
      	
              16.

            	
              INSURANCE

            


    

     

    
      	
              16.1

            	
              The
      Organisation must, for as long as any obligations remain in connection
      with this Agreement, have insurance as specified in the
      Schedule.

            


    

     

    
      16.2
Whenever requested, the Organisation must provide the Department, within 10
Business Days of the request, with evidence satisfactory to the Department that
the Organisation has complied with its obligation to insure.

    

     

    
      16.3 All
insurance under this clause 16 and paragraph 7.5(d) is to be taken out with an
insurer recognised by the Australian Prudential Regulation Authority or
regulated by a State/Territory Auditor-General, and whenever requested, the
Organisation must provide the Department with evidence satisfactory to the
Department that the Organisation has complied with its obligation to
insure.

    

     

    
      	
              16.4

            	
              The
      operation of this clause 16 survives the expiration or earlier termination
      of the Term of this Agreement.

            


    

     

    
      	
              17.

            	
              CONFLICT
      OF INTEREST

            


    

     

    
      17.1 The
Organisation 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 Organisation’s obligations under this
Agreement.

    

     

    
      17.2
Without limiting the operation of this clause 17, the Organisation must, during
the Term of this Agreement, ensure that no Conflict arises through the
Organisation’s involvement with the parties or programs, if any, specified in
the Schedule.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        27

        
          

        

      

      
         


      

    


    
      	
              17.3

            	
              If
      during the Term of this Agreement, a Conflict arises, the Organisation
      must:

            


    

     

    
      	
               
      

            	
              (a)

            	
              immediately
      notify the Department in writing of that Conflict and of the steps the
      Organisation proposes to take to resolve or otherwise deal with the
      Conflict;

            


    

     

    
      	
               
      

            	
              (b)

            	
              make
      full disclosure to the Department of all relevant information relating to
      the Conflict; and

            


    

     

    
      	
               
      

            	
              (c)

            	
              take
      such steps as the Department may, if it chooses to, reasonably require to
      resolve or otherwise deal with that
Conflict.

            


    

     

    
      17.4 If
the Organisation fails to notify the Department under this clause 17, or is
unable or unwilling to resolve or deal with the Conflict as required, the
Commonwealth may terminate the Term of this Agreement in accordance with clause
21.

    

     

    18.
ACCESS TO PREMISES AND RECORDS

     

    
      18.1 The
Organisation must give the Auditor-General, the Privacy Commissioner and persons
authorised by the Commonwealth (referred to in this clause 18 collectively as
‘those permitted’) access to premises at which Records and Material associated
with this Agreement are stored or work under the Activity is undertaken at all
reasonable times and allow those permitted to inspect and copy Records and
Material, in the Organisation’s possession or control, for purposes associated
with this Agreement or any review of performance under this Agreement. The
Organisation must also give those permitted access to any Assets, wherever they
may be located, and reasonable access to the Organisation’s employees, for the
same purposes.

    

     

    
      	
              18.2

            	
              The
      Organisation must provide all reasonable assistance requested by those
      permitted when they exercise the rights under subclause 18.1
      including:

            


    

     

    
      	
               
      

            	
              (a)

            	
              making
      available all information, documentation and data, in any medium, required
      by the Commonwealth at the Organisation’s registered office or (with the
      Commonwealth’s consent) the Organisation’s principal place of business or
      other place, and

            


    

     

    
      	
               
      

            	
              (b)

            	
              making
      available the Organisation’s employees, officers, volunteers and Advisors
      who must provide access to the Organisation’s computer Records and copies
      of documentation, including computer discs or other forms of electronic
      data.

            


    

     

    
      	
              18.3

            	
              The
      rights referred to in subclause 18.1 are subject
  to:

            


    

     

    
      	
               
      

            	
              (a)

            	
              the
      provision of reasonable prior notice by those permitted (except where they
      believe that there is an actual or apprehended breach of the law);
      and

            


    

     

    
      	
               
      

            	
              (b)

            	
              the
      Organisation’s reasonable security
procedures.

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        28

        
          

        

      

      
         


      

    


    
      18.4 The
requirement for access as specified in subclause 18.1 does not in any way reduce
the Organisation’s responsibility to perform the Organisation’s obligations in
accordance with this Agreement.

    

     

    
      18.5 The
Organisation must ensure that any subcontract entered into for the purpose of
this Agreement contains an equivalent clause allowing those permitted to have
access as specified in this clause 18.

    

     

    
      18.6 This
clause 18 applies for the Term of this Agreement and for a period of 7 years
from the date of the expiration or earlier termination of the Term of this
Agreement.

    

     

    19.
DELAY

     

    
      	
              19.1

            	
              The
      Organisation must take all reasonable steps to minimise delay in
      completion of the Activity.

            


    

     

    
      19.2 If
the Organisation becomes aware that it will be delayed in progressing or
completing the Activity in accordance with this Agreement, the Organisation must
immediately notify the Department in writing of the cause and nature of the
delay. The Organisation is to detail in the notice the steps it will take to
contain the delay.

    

     

    
      	
              19.3

            	
              On
      receipt of a notice of delay, the Commonwealth may at its sole
      option:

            


    

     

    
      	
               
      

            	
              (a)

            	
              notify
      the Organisation in writing of a period of extension to complete the
      Activity and vary this Agreement
accordingly;

            


    

     

    
      	
               
      

            	
              (b)

            	
              notify
      the Organisation in writing of reduction in the scope of the Activity and
      any adjustment to the Funds for the Organisation to complete the reduced
      Activity and vary this Agreement accordingly;
or

            


    

     

    
      	
               
      

            	
              (c)

            	
              terminate
      this Agreement under clause 21 or take such other steps as are available
      under this Agreement.

            


    

     

    
      19.4
Unless the Commonwealth takes action under subclause 19.3, the Organisation is
required to comply with the time frame for progressing and completing the
Activity as set out in this Agreement.

    

     

    
      19.5 If
the Organisation does not notify the Department of any delay in progressing or
completing the Activity in accordance with subclause 19.2 the Commonwealth may,
at its sole discretion, terminate this Agreement under clause
21.

    

     

    20.
TERMINATION WITH COSTS

     

    
      	
              20.1

            	
              The
      Commonwealth may, at any time by written notice to the Organisation,
      terminate the Term of this Agreement in whole or reduce the scope of this
      Agreement without prejudice to the rights, liabilities, or obligations of
      either Party accruing prior to the date of termination. If this Agreement
      is terminated or reduced in scope the Commonwealth will only be liable
      for:

            


    

     

    Department
of the Environment and Water Resources Funding Agreement
 

    
      
         


      

      
        29

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              (a)

            	
              subject
      to subclause 20.3, payments under the payment provisions of this
      Agreement; and

            


    

     

    
      	
               
      

            	
              (b)

            	
              subject
      to subclauses 20.4, 20.5 and 20.6, any reasonable costs incurred by the
      Organisation and directly attributable to the termination of the Term of
      this Agreement or reduction in scope of the
  Agreement.

            


    

     

    
      	
              20.2

            	
              Upon
      receipt of a notice of termination or reduction in scope the Organisation
      must:

            


    

     

    
      	
               
      

            	
              (a)

            	
              cease
      or reduce the performance of the Organisation’s obligations under this
      Agreement in accordance with the
notice;

            


    

     

    
      	
               
      

            	
              (b)

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

            


    

     

    
      	
               
      

            	
              (c)

            	
              immediately
      return to the Commonwealth any Funds in accordance with paragraph 20.3(b);
      or

            


    

     

    
      	
               
      

            	
              (d)

            	
              deal
      with any such Funds as the Commonwealth may direct in
    writing.

            


    

     

    
      	
              20.3

            	
              Where
      the Commonwealth terminates the Term of this Agreement under subclause
      20.1 the Commonwealth:

            


    

     

    
      	
               
      

            	
              (a)

            	
              will
      not be obliged to pay to the Organisation any outstanding amount of the
      Funds except to the extent that those monies have been legally committed
      for expenditure by the Organisation in accordance with this Agreement and
      payable by the Organisation as a current liability (written evidence of
      which will be required) by the date on which the notice of termination
      given under subclause 20.1 is deemed to be received in accordance with
      subclause 35.2; and

            


    

     

    
      	
               
      

            	
              (b)

            	
              will
      be entitled to recover from the Organisation any part of the Funds
      which:

            


    

     

    
      	
               
      

            	
              (i)

            	
              has
      not been legally committed for expenditure by the Organisation in
      accordance with this Agreement and payable by the Organisation as a
      current liability (written evidence of which will be required) by the date
      on which the notice of termination given under subclause 20.1 is deemed to
      be received in accordance with subclause 35.2;
  or

            


    

     

    
      	
               
      

            	
              (ii)

            	
              has
      not, in the Commonwealth’s opinion, been expended by the Organisation in
      accordance with the terms and conditions of this
  Agreement;

            


    

     

    and all
such Funds will, without prejudice to any other rights available to the
Commonwealth under this Agreement or at law or in equity, be regarded as a debt
due to the Commonwealth capable of being recovered as such in any court of
competent jurisdiction.

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        30

        
          

        

      

      
         


      

    

     

    
      20.4 If
there is a reduction in scope of the obligations under this Agreement, the
Commonwealth’s liability to pay any part of the Funding will, in the absence of
agreement to the contrary, abate proportionately to the reduction in the
obligations under this Agreement.

    

     

    
      	
              20.5

            	
              The
      Commonwealth’s liability to pay any compensation under or in relation to
      this clause 20 is subject to:

            


    

     

    
      	
               
      

            	
              (a)

            	
              the
      Organisation’s strict compliance with this clause 20;
  and

            


    

     

    
      	
               
      

            	
              (b)

            	
              the
      Organisation’s substantiation of any amount claimed under paragraph
      20.1(b).

            


    

     

    
      20.6 The
Commonwealth will not be liable to pay compensation for loss of prospective
profits for a termination or reduction in scope under this clause 20 or loss of
any benefits that would have been conferred on the Organisation had the
termination or reduction not occurred.

    

     

    21.
TERMINATION FOR DEFAULT

     

    21.1             If:

     

    
      	
               
      

            	
              (a)

            	
              the
      Organisation 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 in writing from the Department to
      do so;

            


    

     

    
      	
               
      

            	
              (b)

            	
              the
      Organisation is unable to pay all of its debts as and when they become due
      and payable or the Organisation fails to comply with a statutory demand
      within the meaning of sections 459E and 459F of the Corporations Act 2001
      (Cth);

            


    

     

    
      	
               
      

            	
              (c)

            	
              proceedings
      are initiated with a view to obtaining an order for the Organisation’s
      winding up or any shareholder, member or director convenes a meeting for
      the purpose of considering or passing of any resolution for the
      Organisation’s winding up;

            


    

     

    
      	
               
      

            	
              (d)

            	
              the
      Organisation 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 Incorporated Associations
      legislation of the States and Territories or Parts IV and V of the Aboriginal Councils and
      Associations Act 1976 (Cth), or an order has been made for the
      purpose of placing the Organisation under external
      administration;

            


    

     

    
      	
               
      

            	
              (e)

            	
              in
      relation to this Agreement, the Organisation breaches any law of the
      Commonwealth, or of a State or
Territory;

            


    

     

    
      	
               
      

            	
              (f)

            	
              the
      Organisation ceases to carry on
business;

            


    

     

    
      	
               
      

            	
              (g)

            	
              the
      Department is satisfied that any statement made in the Organisation’s
      application for Funding is incorrect, incomplete, false or misleading in a
      way which would have affected the original decision to approve the
      Funding;

            


    

    


    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        31

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              (h)

            	
              notice
      is served on the Organisation or proceedings are taken to cancel the
      Organisation’s incorporation or registration or to dissolve the
      Organisation as a legal entity;

            


    

     

    
      	
               
      

            	
              (i)

            	
              the
      Organisation is in receipt of Commonwealth funding under any other
      agreement made with the Commonwealth and breaches that other
      agreement;

            


    

     

    
      	
               
      

            	
              (j)

            	
              the
      Department is not reasonably satisfied that the purposes and activities of
      the Organisation remain compatible with the Program or
      Activity;

            


    

     

    
      	
               
      

            	
              (k)

            	
              the
      Organisation, by written notice to the Department, withdraws from the
      Activity; or

            


    

     

    
      	
               
      

            	
              (l)

            	
              being
      an individual, the Organisation becomes bankrupt or enters into a scheme
      of arrangement with creditors;

            


    

     

    then, in
the case of any one or more of these events, the Commonwealth may immediately
terminate the Term of this Agreement by giving written notice to the
Organisation of the termination.

     

    
      	
              21.2

            	
              Where
      the Commonwealth terminates the Term of this Agreement under subclause
      21.1, the Commonwealth:

            


    

     

    
      	
               
      

            	
              (a)

            	
              will
      not be obliged to pay to the Organisation any outstanding amount of the
      Funds except to the extent that those monies have been legally committed
      for expenditure by the Organisation in accordance with this Agreement and
      are payable by the Organisation as a current liability (written evidence
      of which will be required) by the date the notice of termination given
      under subclause 21.1 is deemed to be received in accordance with subclause
      35.2; and

            


    

     

    
      	
               
      

            	
              (b)

            	
              will
      be entitled to recover from the Organisation any part of the Funds
      which:

            


    

     

    
      	
               
      

            	
              (i)

            	
              has
      not been legally committed for expenditure by the Organisation in
      accordance with this Agreement and payable by the Organisation as a
      current liability (written evidence of which will be required) by the date
      the notice of termination given under subclause 21.1 is deemed to be
      received in accordance with subclause 35.2;
or

            


    

     

    
      	
               
      

            	
              (ii)

            	
              has
      not, in the Commonwealth’s opinion, been expended by the Organisation in
      accordance with the terms and conditions of this
  Agreement;

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        32

        
          

        

      

      
         


      

    

     

    
      	
              21.3

            	
              If
      the Organisation does not repay to the Commonwealth the amount referred to
      in paragraph 21.2(b) within 10 Business Days of receipt of the notice of
      termination (or if a different period is stated in the notice of
      termination, that period) the Organisation must also pay the Commonwealth
      Interest on the outstanding amount which the Organisation acknowledges
      represents a reasonable pre-estimate of the loss incurred by the
      Commonwealth as a result of the loss of investment opportunity for, or the
      reasonable cost of borrowing other money in place of, the amount which
      should have been repaid. The amount set out in the notice, and Interest
      owed under this clause will, without prejudice to any other rights
      available to the Commonwealth under this Agreement or at law or in equity,
      be recoverable by the Commonwealth as a debt due to the Commonwealth by
      the Organisation.

            


    

     

    
      21.4
Subclause 21.2 does not limit or exclude any of the Commonwealth’s other rights,
including the right to recover any other amounts from the Organisation on
termination of the Term of this Agreement.

    

     

    22.
SUBCONTRACTING

     

    
      22.1 The
Organisation must not, without the Department’s prior written approval,
subcontract the performance of any obligations under this Agreement. In giving
written approval, the Department may impose such terms and conditions as the
Department think fit. Any subcontractor with whom the Organisation proposes to
replace an approved subcontractor must also be approved by the Department under
this clause 22. The subcontractors the Department has approved at the Date of
this Agreement, and any terms and conditions relating to their use, are
identified in the Schedule.

    

     

    
      22.2 The
Organisation is fully responsible for the performance of all of its obligations
under this Agreement, even though the Organisation may have subcontracted any of
them.

    

     

    
      22.3
Despite any approval given by the Department under subclause 22. 1, the
Organisation is responsible for ensuring the suitability of a subcontractor for
the work proposed to be carried out and for ensuring that such work meets the
requirements of this Agreement.

    

     

    
      	
              22.4

            	
              The
      Department may revoke its approval of a subcontractor on any reasonable
      ground.

            


    

     

    
      22.5 Upon
receipt of a written notice from the Department revoking its approval of a
subcontractor, the Organisation must, as soon as practicable (or as the
Department may direct in the notice), cease using that subcontractor to perform
any of the Organisation’s obligations unless the Department directs that the
subcontractor be replaced immediately, in which case the Organisation must
comply with the direction.

    

     

    
      22.6 If
the Department revokes its approval of a subcontractor, the Organisation remains
liable under this Agreement for the past acts or omissions of the Organisation’s
subcontractors as if they were current subcontractors.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        33

        
          

        

      

      
         


      

    


     

    
      	
              22.7

            	
              The
      Organisation must, in any subcontract placed with a subcontractor, reserve
      a right of termination to take account of the Commonwealth’s right of
      termination under clauses 20 or 21 and the Commonwealth’s right of
      revocation of approval under subclause 22.4, and the Organisation must,
      where appropriate, make use of that right in the event of a termination or
      revocation by the Commonwealth.

            


    

     

    
      22.8 The
Organisation must not enter into a subcontract under this Agreement with a
subcontractor named by the Director of the Equal Opportunity for Women in the
Workplace Agency as an employer currently not complying with the Equal Opportunity for Women in the
Workplace Act 1999 (Cth).

    

     

    
      	
              23.

            	
              ACKNOWLEDGMENT
      AND PUBLICITY

            


    

     

    
      23.1 The
Organisation must obtain the Department’s written approval to each public
announcement or publication the Organisation makes that relates to the Activity,
the Funding or this Agreement prior to the making of that announcement or
publication. In all publications, promotional and advertising materials, public
announcements and activities by the Organisation or on the Organisation’s behalf
in relation to the Activity, or any products, processes or inventions developed
as a result of it, the Organisation must acknowledge the financial and other
support it has received from the Australian Government, in the form and
containing the information which, if not set out in the Schedule, must be
approved by the Department prior to the use of the publication, material,
announcement or activity.

    

     

    
      23.2 The
Department reserves the right to publicise and report on the awarding of Funding
to the Organisation. The Department may do this by including in media releases,
general announcements about the Funding and in annual reports the Organisation’s
name, the amount of the Funds given to the Organisation and the title and a
brief description of the Activity.

    

     

    
      	
              23.3

            	
              Where
      the Organisation has been provided with Funding to produce any
      publication, a copy of the publications must be provided to the
      Department.

            


    

     

    
      23.4 This
clause 23 applies for the Term of this Agreement and for a period of 7 years
from the date of expiration or earlier termination of the Term of this
Agreement.

    

     

    
      	
              24.

            	
              SPECIFIED
      PERSONNEL

            


    

     

    
      24.1 The
Organisation must ensure that the Specified Personnel, if any, listed in the
Schedule undertake activities in respect of the Activity in accordance with the
terms of this Agreement.

    

     

    
      24.2
Where Specified Personnel are unable to undertake activities in respect of the
Activity, the Organisation must notify the Department immediately. The
Organisation must, if so requested by the Department, provide replacement
personnel acceptable to the Department without additional payment and at the
earliest opportunity.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        34

        
          

        

      

      
         


      

    

     

    
      	
              24.3

            	
              The
      Department may give notice on reasonable grounds related to the
      performance of the Activity requiring the Organisation to remove personnel
      (including Specified Personnel) from work in respect of the Activity. The
      Organisation must, at the Organisation’s own cost, promptly arrange for
      the removal of such personnel from work in respect of the Activity and
      their replacement with personnel acceptable to the
    Department.

            


    

     

    
      24.4 If
the Organisation is unable to provide acceptable replacement personnel the
Commonwealth may terminate this Agreement in accordance with the provisions of
clause 21.

    

     

    
      	
              25.

            	
              COMPLIANCE
      WITH LAWS AND OUR POLICIES

            


    

     

    
      25.1 The
Organisation must, in carrying out its obligations under this Agreement, comply
with the provisions of all relevant statutes, regulations, by-laws and
requirements of any Commonwealth, State, Territory or Local Authority, including
those listed in the Schedule. The Organisation should note that under the Criminal Code Act
1995 (Cth) section 137.1 giving false or misleading information is a
serious offence.

    

     

    
      25.2 The
Organisation must, in carrying out its obligations under this Agreement, comply
with any of the Commonwealth’s policies as notified, referred or made available
by the Commonwealth to the Organisation in writing (including by reference to an
internet site), including those listed in the Schedule.

    

     

    
      25.3 The
Organisation must, when using the Commonwealth’s premises or facilities, 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 Commonwealth or as might reasonably be inferred
from the use to which the premises or facilities are being
put.

    

     

    
      	
              26.

            	
              NEGATION
      OF LEGAL RELATIONSHIP OF EMPLOYMENT, PARTNERSHIP AND
  AGENCY

            


    

     

    
      26.1 The
Organisation, its employees, officers, volunteers, partners and Advisers will
not, by virtue of this Agreement, be or for any purpose be deemed to be the
Commonwealth’s legal employees, partners or agents.

    

     

    
      26.2 The
Organisation must not, and must ensure that its employees, officers, volunteers,
partners and Advisers do not, represent the Organisation or themselves as being
the Commonwealth’s employees, officers, volunteers, partners or Advisors or as
otherwise able to bind or represent the Commonwealth.

    

     

    
      	
              27.

            	
              ENTIRE
      AGREEMENT, VARIATION AND SEVERANCE

            


    

     

    
      	
              27.1

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

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        35

        
          

        

      

      
         


      

    


    
      27.2
Except for action the Commonwealth 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 the Parties.

    

     

    
      27.3 If a
court or tribunal says any provision of this Agreement has no effect or
interprets a provision to reduce an obligation or right, this does not
invalidate any other provision.

    

     

    28.
WAIVER

     

    
      	
              28.1

            	
              If
      either Party does not exercise (or delays in exercising) any of its
      rights, that failure or delay does not operate as a waiver of those
      rights.

            


    

     

    
      	
              28.2

            	
              A
      single or partial exercise by a Party of any of its rights does not
      prevent the further exercise of any
right.

            


    

     

    
      	
              28.3

            	
              Waiver
      of any provision of, or right under, this
  Agreement:

            


    

     

    
      	
               
      

            	
              (a)

            	
              must
      be in writing signed by the Party entitled to the benefit of that
      provision or right; and

            


    

     

    
      	
               
      

            	
              (b)

            	
              is
      effective only to the extent set out in the written
  waiver.

            


    

     

    
      	
              28.4

            	
              In
      this clause 28, ‘rights’ means rights or remedies provided by this
      Agreement or at law.

            


    

     

    29.
ASSIGNMENT AND NOVATION

     

    
      	
              29.1

            	
              The
      Organisation must not assign its rights under this Agreement without prior
      written approval from the
Department.

            


    

     

    
      29.2 The
Organisation agrees not to enter into negotiations with any other person for the
purposes of entering into an arrangement that will require novation of this
Agreement without first obtaining the prior written approval of the
Department.

    

     

    30.
CORPORATE GOVERNANCE

     

    
      30.1 The
Organisation must inform the Department whenever there is a change in its
Constitution, structure, management or operations which could reasonably be
expected to affect its eligibility for the Funding or have an adverse effect on
the Organisation’s ability to comply with its obligations under this
Agreement.

    

     

    31.
FUNDING PRECONDITION

     

    
      	
              31.1

            	
              The
      Organisation agrees that it is a precondition of entitlement to the
      Funding that the Organisation must:

            


    

     

    
      	
               
      

            	
              (a)

            	
              have
      an ABN;

            


    

     

    
      	
               
      

            	
              (b)

            	
              immediately
      notify the Department if the Organisation ceases to be registered with an
      ABN;

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        36

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              (c)

            	
              correctly
      quote its ABN on all documentation it provides to the
      Commonwealth;

            


    

     

    
      	
               
      

            	
              (d)

            	
              supply
      proof of its GST status, if requested by the Department;
    and

            


    

     

    
      	
               
      

            	
              (e)

            	
              immediately
      notify the Department of changes to the Organisation’s GST
      status.

            


    

     

    32.
DISPUTE RESOLUTION

     

    
      32.1
Subject to subclause 32.3, both Parties agree not to commence any legal
proceedings in respect of any dispute arising under this Agreement, which cannot
be resolved by informal discussion, until the procedure provided by this clause
has been utilised.

    

     

    
      	
              32.2

            	
              Both
      Parties agree that any dispute arising during the course of this Agreement
      is dealt with as follows:

            


    

    
      	
               
      

            	
              (a)

            	
              the
      Party claiming that there is a dispute will send the other a written
      notice setting out the nature of the
dispute;

            


    

    
      	
               
      

            	
              (b)

            	
              the
      Parties will try to resolve the dispute though direct negotiation by
      persons who they have given authority to resolve the
    dispute;

            


    

    
      	
               
      

            	
              (b)

            	
              the
      Parties have 10 Business Days from the receipt of the notice to reach a
      resolution or to agree that the dispute is to be submitted to mediation or
      some alternative dispute resolution procedure;
  and

            


    

    
      	
               
      

            	
              (c)

            	
              if-

            


    

     

    
      	
               
      

            	
              (i)

            	
              there
      is no resolution of the dispute;

            


    

     

    
      	
               
      

            	
              (ii)

            	
              there
      is no agreement on submission of the dispute to mediation or some
      alternative dispute resolution procedure;
or

            


    

     

    
      	
               
      

            	
              (iii)

            	
              there
      is a submission to mediation or some other form of alternative dispute
      resolution procedure, but there is no resolution within 15 Business Days
      of the submission, or such extended time as the Parties may agree in
      writing before the expiration of the 15 Business
  Days,

            


    

     

    then,
either Party may commence legal proceedings.

     

    
      	
              32.3

            	
              This
      clause 32 does not apply to the following
  circumstances:

            


    

     

    
      	
            	
              (a)

            	
              either
      Party commences legal proceedings for urgent interlocutory
      relief;

            


    

     

    
      	
            	
              (b)

            	
              action
      by the Commonwealth under or purportedly under clauses 4, 5, 18, 20 or
      21;

            


    

     

    
      	
            	
              (c)

            	
              an
      authority of the Commonwealth, a State or Territory is investigating a
      breach or suspected breach of the law by the
  Organisation.

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        37

        
          

        

      

      
         


      

    


    
      32.4
Despite the existence of a dispute, both Parties must (unless requested in
writing by the other Party not to do so) continue to perform their respective
obligations in accordance with this Agreement.

    

     

    
      	
              32.5

            	
              The
      operation of this clause 32 survives the expiration or earlier termination
      of the Term of this Agreement.

            


    

     

    33.
APPLICABLE LAW AND JURISDICTION

     

    
      	
              33.1

            	
              The
      laws of the Australian Capital Territory apply to this
      Agreement.

            


    

     

    
      33.2 Both
Parties agree to submit to the non-exclusive jurisdiction of the courts of the
Australian Capital Territory in respect to any dispute under this
Agreement.

    

     

    34.
LIAISON AND MONITORING

     

    
      	
              34.1

            	
              The
      Organisation must:

            


    

    
      	
               
      

            	
              (a)

            	
              liaise
      with and provide information to the Department as reasonably required by
      the Department; and

            


    

     

    
      	
               
      

            	
              (b)

            	
              comply
      with all the Commonwealth’s reasonable requests, directions, or monitoring
      requirements.

            


    

     

    
      34.2 The
Department may nominate, from time to time, a person within the Department who
has authority to liaise with the Organisation, receive and sign notices and
written communications for the Commonwealth under this Agreement and give any
request or direction in relation to the Activity.

    

     

    
      34.3 The
Organisation may nominate, from time to time, a person who has authority to
liaise with the Department, receive and sign notices and written communications
for the Organisation under this Agreement and accept any request or direction in
relation to the Activity.

    

     

    
      	
              34.4

            	
              At
      the Date of this Agreement, the persons referred to in subclauses 34.2 and
      34.3 are the persons specified in Item 16 of the
  Schedule.

            


    

     

    35.
NOTICES

     

    
      	
              35.1

            	
              A
      Party giving notice or notifying under this Agreement must do so in
      writing or by electronic mail or facsimile
  transmission:

            


    

     

    
      	
               
      

            	
              (a)

            	
              directed
      to the recipient's address, as varied by any notice;
  and

            


    

     

    
      	
               
      

            	
              (b)

            	
              hand
      delivered or sent by pre-paid post or transmitted by electronic mail or
      facsimile transmission (‘electronically’) to that address. If a notice is
      sent electronically a copy is also to be sent to the addressee by pre-paid
      post.

            


    

     

    The
Parties' address details as at the Date of this Agreement are specified in the
Schedule.

     

    
      	
              35.2

            	
              A
      notice given in accordance with subclause 35.1 is taken to be
      received:

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        38

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (a)

            	
              if
      hand delivered, on delivery;

            


    

     

    
      	
               
      

            	
              (b)

            	
              if
      sent by pre-paid post, 5 Business Days after the date of posting unless it
      has been received earlier; or

            


    

     

    
      	
               
      

            	
              (c)

            	
              if
      transmitted electronically, upon actual receipt by the
      addressee.

            


    

     

    
      36.
COMPLIANCE WITH THE NATIONAL CODE OF PRACTICE FOR THE CONSTRUCTION
INDUSTRY

    

     

    36.1             In
this clause:

     

    
      (a) ‘the Activity Parties’ means
all contractors, subcontractors, suppliers, consultants and employees and their
Related Entities who perform work or provide services in relation to the
Activity;

    

     

    
      (b) ‘the Code’ means the National
Code of Practice for the Construction Industry. A copy of the Code appears on
the Internet at www.workplace.gov.au/building;

    

     

    
      (c) ‘the Implementation Guidelines’
means the Australian Government Implementation Guidelines for the
National Code of Practice for the Construction Industry dated June 2006 and
published by the Department of Employment and Workplace Relations. A copy of
those Implementation Guidelines appears on the Internet at
www.workplace.gov.au/building;

    

     

    
      (d) ‘Model Contract Clauses’ means
the model contract clauses issued by the Department of Employment and Workplace
Relations and contained in Part 6 of the document located at
http://www.workplace.gov.au/workplace/Category/PolicyReviews/
BuildingConstruction/GuidelinesFromNov2005/TenderandContrac
tDocumentation.htm;

    

    
      
      

    

     

    (e) ‘Model Tender Documents’ means
the documents issued by the Department of Employment and Workplace Relations and
contained in Parts 2 to 5 (inclusive) of the document located at
http://www.workplace.gov.au/workplace/Category/PolicyReviews/
BuildingConstruction/GuidelinesFromNov2005/TenderandContrac tDocumentation.htm;
and

     

    (f) ‘Related Entities’ has the meaning
given to that term in the Implementation Guidelines.

     

    
      
        	
                36.2

              	
                The
      Organisation must comply, and ensure that the Activity Parties comply,
      with the Code and the Implementation Guidelines where the Activity
      involves construction and building activity and
  either:

              


      

    

     

    
      	
               
      

            	
              (a)

            	
              the
      value of the total Australian Government contribution (including the
      Funding) to the Activity is at least $5 million and at least 50% of the
      total value of the Activity; or

            


    

     

    
      	
               
      

            	
              (b)

            	
              the
      Australian Government contribution (including the Funding) to the Activity
      is $10 million or more.

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        39

        
          

        

      

      
         


      

    


    
      	
              36.3

            	
              The
      Organisation must ensure that:

            


    

     

    
      	
               
      

            	
              (a)

            	
              all
      requests for tender or other bid documentation in relation to the Activity
      made by it or any of the Activity Parties contain the commitment to comply
      with the Code and the Implementation Guidelines as set out in the Model
      Tender Documents (but noting that all references to the “Industry
      Guidelines” in those tender documents should be changed to references to
      the “Implementation Guidelines” unless a reference to the “Industry
      Guidelines” immediately proceeds a reference to the “Implementation
      Guidelines”, in which case that particular reference to the “Industry
      Guidelines” should be deleted); and

            


    

     

    
      	
               
      

            	
              (b)

            	
              all
      contracts entered into in relation to the Activity by it or any of the
      Activity Parties contain the commitment to comply with the Code and the
      Implementation Guidelines as set out in the Model Contract Clauses (but
      noting that all references to the “Industry Guidelines” in the Model
      Contract Clauses should be changed to references to the “Implementation
      Guidelines” unless a reference to the “Industry Guidelines” immediately
      proceeds a reference to the “Implementation Guidelines”, in which case
      that particular reference to the “Industry Guidelines” should be
      deleted).

            


    

     

    
      	
              36.4

            	
              The
      Organisation shall maintain adequate Records of its, and each Activity
      Party’s, compliance with the Code and the Implementation Guidelines. The
      Organisation shall permit, and require the Activity Parties to permit, the
      Commonwealth and those authorised by the Commonwealth, including a person
      occupying a position in the Office of the Australian Building and
      Construction Commissioner, full access to its or the relevant Activity
      Party’s (as the case may be) premises and records
  to:

            


    

     

    
      	
               
      

            	
              (a)

            	
              inspect
      any work, material, machinery, appliance, article or
    facility;

            


    

     

    
      	
               
      

            	
              (b)

            	
              inspect
      and copy any record relevant to the Activity or works that are the subject
      of this Agreement;

            


    

     

    
      	
               
      

            	
              (c)

            	
              interview
      any person; or

            


    

     

    
      	
               
      

            	
              (d)

            	
              request
      a party to this Agreement to produce a specified document within a
      specified period, being not less than 14 days, in person, by fax or by
      post,

            


    

     

    as is
necessary to allow validation of the Organisation’s or the Activity Party’s (as
the case may be) progress in complying with the Code and Implementation
Guidelines.

     

    
      36.5 The
Commonwealth and those authorised by it may publish or otherwise disclose
information in relation to compliance by the Organisation and the Activity
Parties with the Code and the Implementation Guidelines. The Organisation must
obtain the consent of the Activity Parties to the publication or disclosure of
information under this clause.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        40

        
          

        

      

      
         


      

    

     

    
      36.6 The
Organisation must not appoint an Activity Party if that appointment would
constitute a breach of a sanction imposed by the Code Monitoring Group (as that
term is defined in the Implementation Guidelines) for failure to comply with the
Code.

    

     

    
      	
              36.7

            	
              Compliance
      with the Code and the Implementation Guidelines shall not relieve the
      Organisation from its responsibility to perform its obligations under this
      Agreement, or from any liability for any defect in the performance of the
      Activity arising from compliance with the Code or Implementation
      Guidelines.

            


    

     

    37.
REVIEW

     

    
      	
              37.1

            	
              The
      Organisation agrees to:

            


    

     

    
      	
            	
              (a)

            	
              provide
      all reasonable assistance required by the
  Commonwealth;

            


    

     

    
      	
            	
              (b)

            	
              respond
      to all the Commonwealth’s reasonable requests;
  and

            


    

     

    
      	
            	
              (c)

            	
              provide
      any information the Commonwealth reasonably requires; in relation to
      conducting a review and final evaluation of the
  Program.

            


    

     

    
      	
              37.2

            	
              The
      operation of this clause 37 survives the expiration or earlier termination
      of the Term of this Agreement.

            


    

     

    38.
ANIMAL ETHICS

     

    
      	
              38.1

            	
              Where
      the Activity involves the use and care of living non-human vertebrate
      animals or tissue for scientific purposes, the Organisation must obtain
      review of and approval for such scientific purposes from a recognised
      animal ethics committee operating under the Australian Code of Practice
      for the Care and Use of Animals for Scientific
  Purposes.

            


    

     

    
      	
              38.2

            	
              The
      Organisation agrees to provide the Department with a certificate of
      compliance with the appropriate guidelines prior to the commencement of
      any such scientific activities.

            


    

     

    
      38.3 The
Department reserves the right to terminate this Agreement in accordance with
clause 21 should the certificate referred to in clause 3 8.2 not be properly
provided.

    

     

    
      	
              38.4

            	
              The
      Organisation agrees to comply with any legislation, regulations,
      guidelines and/or codes of practice relating to animal welfare in force in
      the States or Territories where the Activity is to be carried
      out.

            


    

    


    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        41

        
          

        

      

      
         


      

    

     

    SCHEDULE

     

    SCHEDULE

     

    
      TERM,
PROGRAM AND ACTIVITY (Recital A, subclauses 1.1, 2.1, 5.1 and
6.7)

    

     

    TERM

     

    
      1.1 The
Activity Period commences on the Date of this Agreement and ends on 31 May,
2010.

    

    1.2 The
Completion Date is 30 July ,
2010.

     

    PROGRAM

     

    
      1.3 The
Advanced Electricity Storage Technologies (AEST) program objective is to
maximise the value of renewable energy from intermittent electricity generation
through the development and application of energy storage technologies for
on-grid megawatt size storage for large renewable energy systems, on-grid
kilowatt size storage for household photovoltaic electricity systems and remote
area power supplies and other renewable electricity
applications.

    

     

    ACTIVITY

     

    
      1.4 In
conducting the Activity, the Organisation must perform the work and achieve the
Milestones (including those relating to the provision of Reports) specified in
this item 1 of the Schedule.

    

     

    
      1.5 ZBB
Technologies Ltd is committed to helping achieve the AEST program objectives
through its conduct of the Project Activities contained in their AEST Final
Application dated 24 November 2006 and attached to this agreement at Annexure
“A”.

    

     

    
      1.6 The
principal outcome of this project will be to demonstrate a re-engineered 500
kilowatt-hour (kWh) utility storage battery for use with renewable energy
provided by a 120 kW photovoltaic (PV) system and three 20 kW wind turbines on
site at CSIRO Energy Centre in Newcastle. The stored electricity will be used to
provide supplementary power to the building or exported to the grid. CSIRO has
an excellent energy management system in place to monitor and control the
operation.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        42

        
          

        

      

      
         


      

    


    FUNDING AND PAYMENT (subclauses 1.1 and
4.1 and clause 5)

     

    FUNDING

    
       

      2.1 The
total funding for the Activity is $3,368,440 which represents
$3,062,218 the amount of
Funding to be provided by the Commonwealth for the Activity, and $306,222 being the total GST
payable in accordance with clause 4.

    

     

    
      
        	
                2.2

              	
                The
      Funding will be paid at the times and in the manner specified in the
      following table:

              


      

    

     

    Table
1

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          	
                                                  Payment No &

                                                  Date

                                                	 	
                                                  Milestone activity

                                                	 	
                                                  Amount

                                                	 	 	
                                                  GST

                                                	 	 	
                                                  Total

                                                	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 
	
                                                  1 -
      May 2007

                                                	 	
                                                  Signing
      of Agreement – Milestone 1

                                                	 	 	100,000	 	 	 	10,000	 	 	 	110,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                  2 -
      31 August 20007

                                                	 	
                                                  Progress
      Report 1 - Completion of Milestone 1 to the satisfaction of the
      Commonwealth.

                                                	 	 	250,000	 	 	 	25,000	 	 	 	275,000	 
	 
      	 	
                                                   
      

                                                	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                  3 -
      30 November 2007

                                                	 	
                                                  Progress
      Report 2 - Completion of Milestone 2 to the satisfaction of the
      Commonwealth.

                                                	 	 	230,000	 	 	 	23,000	 	 	 	253,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                  4 -
      29 February 2008

                                                	 	
                                                  Progress
      Report 3 - Completion of Milestone 3 to the satisfaction of the
      Commonwealth.

                                                	 	 	500,000	 	 	 	50,000	 	 	 	550,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                  5 -
      31 May 2008

                                                	 	
                                                  Progress
      Report 4- Completion of Milestone 4 to the satisfaction of the
      Commonwealth.

                                                	 	 	500,000	 	 	 	50,000	 	 	 	550,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                  6 -
      30 November 2008

                                                	 	
                                                  Progress
      Report 5 - Completion of Milestone 5 to the satisfaction of the
      Commonwealth.

                                                	 	 	500,000	 	 	 	50,000	 	 	 	550,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                  7 -
      31 May 2009

                                                	 	
                                                  Progress
      Report 6 - Completion of Milestone 6 to the satisfaction of the
      Commonwealth.

                                                	 	 	700,000	 	 	 	70,000	 	 	 	770,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                  8 -
      30 November 2009

                                                	 	
                                                  Progress
      Report 7 - Completion of Milestone 7 to the satisfaction of the
      Commonwealth.

                                                	 	 	100,000	 	 	 	10,000	 	 	 	110,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                  9 -
      31 May 2010

                                                	 	
                                                  Final
      Report - Completion of Milestone 9 to the satisfaction of the
      Commonwealth. Final report accepted by AGO. Final acquittal report
      submitted. Public information report printed and
    distributed.

                                                	 	 	182,218	 	 	 	18,222	 	 	 	200,440	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	 
      	 	
                                                  TOTAL

                                                	 	 	3,062,218	 	 	 	306,222	 	 	 	3,368,440	 


                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    2.3 Any
payment in accordance with Item 2.2 is subject to:

     

    
      (a) the
Organisation’s compliance with the Reporting requirements falling up to and on
the date the payment is due (see Item 5);

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        43

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              (b)

            	
              where
      the Organisation makes a Taxable Supply under this Agreement, the
      Organisation providing the Commonwealth with a Tax Invoice in accordance
      with subclause 10.5; and

            


    

     

    
      	
               
      

            	
              (c)

            	
              the
      Organisation demonstrating that the Funds already provided to the
      Organisation have been fully spent or will be fully spent in the near
      future.

            


    

     

    ORGANISATION’S
CONTRIBUTIONS AND OTHER

    CONTRIBUTIONS
(subclause 1.1 and clause 6)

     

    ORGANISATION’S
CONTRIBUTIONS

     

    3.1 The
Organisation’s Contributions are specified in the following table.

     

    Table
2

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            	
                                                                    Contribution

                                                                    No & Date

                                                                  	 	
                                                                    Organisation’s Contribution

                                                                  	 	
                                                                    Amount

                                                                  	 	 	
                                                                    GST

                                                                  	 	 	
                                                                    Total

                                                                  	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 
	
                                                                    1.
      Initial

                                                                    31
      May 2007

                                                                  	 	
                                                                    Signing
      of Agreement – Milestone 1

                                                                  	 	
                                                                    nil

                                                                  	 	 	 	 	 	
                                                                    nil

                                                                  	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 
	
                                                                    2.
      Progress

                                                                    31
      August 20007

                                                                  	 	
                                                                    Progress
      Report 1 - Completion of Milestone 1 to the satisfaction of the
      Commonwealth.

                                                                  	 	 	135,000	 	 	 	13,500	 	 	 	148,500	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                    3.
      Progress

                                                                    30
      November 2007

                                                                  	 	
                                                                    Progress
      Report 2 - Completion of Milestone 2 to the satisfaction of the
      Commonwealth.

                                                                  	 	 	135,000	 	 	 	13,500	 	 	 	148,500	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                    4
      Progress

                                                                    29
      February 2008

                                                                  	 	
                                                                    Progress
      Report 3 - Completion of Milestone 3 to the satisfaction of the
      Commonwealth.

                                                                  	 	 	155,000	 	 	 	15,500	 	 	 	170,500	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                    5.
      Progress

                                                                    31
      May 2008

                                                                  	 	
                                                                    Progress
      Report 4- Completion of Milestone 4 to the satisfaction of the
      Commonwealth.

                                                                  	 	 	360,000	 	 	 	36,000	 	 	 	396,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                    6.
      Progress

                                                                    30
      Nov 2008

                                                                  	 	
                                                                    Progress
      Report 5 - Completion of Milestone 5 to the satisfaction of the
      Commonwealth.

                                                                  	 	 	500,000	 	 	 	50,000	 	 	 	550,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                    7.
      Progress

                                                                    31
      May 2009

                                                                  	 	
                                                                    Progress
      Report 6 - Completion of Milestone 6 to the satisfaction of the
      Commonwealth.

                                                                  	 	 	500,000	 	 	 	50,000	 	 	 	550,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                    8.
      Progress

                                                                    30
      November 2009

                                                                  	 	
                                                                    Progress
      Report 7 - Completion of Milestone 7 to the satisfaction of the
      Commonwealth.

                                                                  	 	 	500,000	 	 	 	50,000	 	 	 	550,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                    9.
      Final

                                                                    31
      May 2010

                                                                  	 	
                                                                    Final
      Report - Completion of Milestone 8 to the satisfaction of the
      Commonwealth. Final report accepted by AGO. Final acquittal report
      submitted. Public information report printed and
    distributed.

                                                                  	 	 	545,216	 	 	 	54,522	 	 	 	599,738	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	 
      	 	
                                                                    TOTAL

                                                                  	 	 	2,830,216	 	 	 	283,022	 	 	 	3,113,238	 


                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        44

        
          

        

      

      
         


      

    


    OTHER
CONTRIBUTIONS

     

    3.2 The
Other Contributions are specified in the following table of this Item 3.2 of the
Schedule.

     

    Not
Applicable

     

    
      3.3 Any
Organisation’s Contributions or Other Contributions must be shown in the Budget
in Item 4 of this Schedule.

    

     

    4.         BUDGET
(subclause 1.1)

     

    
      4.1 For
the Financial Years of the Activity (ending June 30 each year), the Budget for
the Activity is set out below:

    

     

    Table
4

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	
                                    Eligible
      Costs

                                  	 	
                                    Budget
      Expenditure by financial year (GST exclusive)

                                  	 	 	 	 	 	 	 
	
                                    Summary

                                  	 	
                                    2006-07

                                  	 	 	
                                    2007-08

                                  	 	 	
                                    2008-09

                                  	 	 	
                                    2009-10

                                  	 	 	
                                    GST

                                  	 	 	
                                    Total

                                  	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
                                    Salary
      and Wages

                                  	 	 	63,292	 	 	 	878,677	 	 	 	918,400	 	 	 	865,415	 	 	 	 	 	 	2,725,784	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
                                    Contractors

                                  	 	 	22,500	 	 	 	303,750	 	 	 	270,000	 	 	 	103,750	 	 	 	70,000	 	 	 	770,000	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
                                    Plant
      and Equipment

                                  	 	 	59,756	 	 	 	784,238	 	 	 	560,906	 	 	 	129,750	 	 	 	153,465	 	 	 	1,688,115	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
                                    IP
      Protection

                                  	 	 	2,100	 	 	 	25,200	 	 	 	25,200	 	 	 	31,500	 	 	 	8,400	 	 	 	92,400	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
                                    Other

                                  	 	 	3,750	 	 	 	82,500	 	 	 	112,250	 	 	 	69,500	 	 	 	26,800	 	 	 	294,800	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
                                    Approved
      Research

                                  	 	 	17,500	 	 	 	213,750	 	 	 	207,500	 	 	 	141,250	 	 	 	58,000	 	 	 	638,000	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
                                    Total

                                  	 	 	168,898	 	 	 	2,288,115	 	 	 	2,094,256	 	 	 	1,341,165	 	 	 	316,665	 	 	 	6,209,099	 


                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      4.2 The
Organisation shall provide a detailed draft budget for each Financial Year of
the Activity Period (other than those covered by the Budgets already included in
this Item 4 of the Schedule) for the consideration and acceptance of the
Department two (2) months prior to the beginning of that Financial
Year.

    

     

    4.3
Payment of Funds for these years is subject to the terms of this Agreement and
acceptance
by the Department of the draft budget for the Financial Year.

     

    
      4.4 If
the Department accepts a draft budget it will become the Budget for the relevant
Financial Year of the Activity Period and be deemed to be incorporated into this
Item 4 of the Schedule as at the date the Department notifies the Organisation
that the draft budget is approved.

    

     

    5.         REPORTS
(subclauses 1.1 and clause 9)

     

    
      5.1 The
Organisation must provide the Reports, in the form and manner, specified in this
Item 5 to the Department.

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        45

        
          

        

      

      
         


      

    


    
      5.2 Two
(2) copies of all progress Reports and the Final Report (one signed original and
one electronic copy in MS-Word or PDF format) must be provided to the
Department.

    

     

    
      5.3 In
addition, the Organisation must provide the financial Reports, at the times and
in the manner, specified in clause 9.

    

     

    PROGRESS
REPORTS

     

    
      5.4 The
Progress Reports are due by the listed dates in the Milestone Schedule in table
1 and should detail the Organisation’s performance of the Project Activities
covered by the Milestone.

    

     

    
      5.5 Key
technical and economic performance indicators and target data will be collected
to comply with Sandia Laboratories guidelines for monitoring and reporting of
energy storage demonstrations. In addition to the Data Management Considerations
and reporting requirements contained in the Final Application, the Sandia
guidelines require, at a minimum, that the following system parameters are
collected at each demonstration site on a daily basis:

    

     

    
      	
            	
              ·

            	
              events
      that result in a change of system operational
  mode;

            


    

    
      	
            	
              ·

            	
              system
      availability for preceding 24-hour
period;

            


    

    
      	
            	
              ·

            	
              demonstrations
      system response times to changes in operating
  conditions;

            


    

    
      	
               
      

            	
              ·

            	
              energy
      and power into and out of the storage demonstration system, for each AC
      phase in the system;

            


    

    
      	
               
      

            	
              ·

            	
              system
      load;

            


    

    
      	
               
      

            	
              ·

            	
              system
      duty cycle;

            


    

    
      	
               
      

            	
              ·

            	
              system
      failures/problems; and

            


    

    
      	
               
      

            	
              ·

            	
              electrical
      performance of the power conditioning system, energy in and
      out.

            


    

     

    Data
collection will cover all aspects of storage device operations, such
as:

    
      	
               
      

            	
              ·

            	
              energy
      in/out on at least an hourly basis, correlated with renewable energy
      generation;

            


    

    
      	
               
      

            	
              ·

            	
              stack
      voltages and other operation
parameters;

            


    

    
      	
               
      

            	
              ·

            	
              electrolyte
      temperature on at least an hourly
basis;

            


    

    
      	
               
      

            	
              ·

            	
              battery
      state-of-charge;

            


    

    
      	
               
      

            	
              ·

            	
              power
      conditioning system operation (temperature, losses, power quality);
      and

            


    

    
      	
               
      

            	
              ·

            	
              ambient
      and battery temperature.

            


    

     

    Where the
projects is an off grid of energy storage system, a key measurable indicator of
the project will the reduction in the consumption of diesel or petrol used for
power generation.

     

    
      5.6 Each
Progress Report must include, but need not be limited to, the following
information for the reporting period:

    

    
      	
            	
              ·

            	
               The
      name of the Organisation;

            


    

    
      	
            	
              ·

            	
              The
      full Activity title;

            


    

    
      	
            	
              ·

            	
              The
      amount of Funds and the total cost/value of the
  Activity;

            


    

    
      	
            	
              ·

            	
              The
      part of the Activity Period to which the Report
  relates;

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        46

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              ·

            	
              A description and
      analysis of the progress of the Activity to date, including the
      Objectives achieved during the period to which the Report
      relates;

            


    

    
      	
               
      

            	
              ·

            	
              A
      clear summary of the work undertaken in the period to which the Report
      relates and an analysis of the effectiveness of this
  work;

            


    

    
      	
               
      

            	
              ·

            	
              Identification
      of the Milestones and timeframes (and any performance indicators) met
      during the period to which the Report
relates;

            


    

    
      	
               
      

            	
              ·

            	
              A
      statement as to whether the timeframes for the Activity are being met and
      an explanation of any delays that have occurred, including the reasons for
      those delays and the action the Organisation proposes to take to address
      the delay and the expected effects (if any) the delay will have on the
      Activity (including subsequent Milestones and the overall completion of
      the Activity);

            


    

    
      	
               
      

            	
              ·

            	
              A
      statement as to whether the Activity is proceeding within Budget, and if
      it is not, an explanation of why the Budget is not being met and the
      action the Organisation proposes to take to address
  this;

            


    

    
      	
               
      

            	
              ·

            	
              A
      statement of the balance of the Organisation’s account referred to in
      paragraph 5.5(a);

            


    

    
      	
               
      

            	
              ·

            	
              An
      income and expenditure statement for the Funds to date (and as compared
      with the Budget);

            


    

    
      	
               
      

            	
              ·

            	
              A
      schedule of the Assets acquired for the Activity as compared with the
      Budget; and

            


    

    
      	
               
      

            	
              ·

            	
              a
      list, and amounts, of debtors and creditors (if the financial statements
      are prepared on a cash basis) or the amount of accruals and pre-payments
      (if the financial statements are prepared on an accrual
      basis);

            


    

    
      	
               
      

            	
              ·

            	
              a
      statement of how much the Organisation needs to meet current liabilities
      under legal commitments entered into by it pursuant to this Agreement;
      and

            


    

    
      	
               
      

            	
              ·

            	
              a
      statement regarding the use of the Activity Generated Income if requested
      by the Department.

            


    

     

    FINAL
REPORT

     

    
      5.7 The
Final Report is due within 60 of Business Days of the end of the Activity Period
(specified in Item 1), completion of the Activity or termination of this
Agreement, whichever is the earliest.

    

     

    5.8             
The Final Report must be a stand-alone document that can be used for public
information dissemination purposes on the operation, mechanisms and processes
employed by the Organisation to perform the Activity and achieve its
Objectives.

     

    
      5.9 The
Final Report must cover the entire Activity Period and describe the benefits and
outcomes of the Activity as a whole (including a summary of the major activities
undertaken by the Organisation, an outline of any demonstration/communication
activities undertaken as specified in Item 1 of the Schedule) against the
following criteria:

    

     

    
      	
               
      

            	
              1.

            	
              The
      Outcomes/Objectives: The degree to which the Activity has achieved
      the Objectives (discuss each
separately).

            


    

     

    
      	
               
      

            	
              2.

            	
              Appropriateness:
      The appropriateness of the approaches used in the development and
      implementation of the Activity.

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        47

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              3.

            	
              Efectiveness:
      The degree to which the Activity has effectively met its stated
      objectives.

            


    

     

    
      	
               
      

            	
              4.

            	
              Transferability:
      The degree to which the approach used to establish, implement and
      administer the operations of the Activity could be applied to other
      regions.

            


    

     

    
      5.10 The
Organisation must also include in the final Report a discussion of any other
matters, relating to the evaluation of the Activity, which the Department
specifies to be included in the final Report. Any such requirement will be
notified to the Organisation at least 30 days before the final Report is
due.

    

     

    
      5.11 The
final Report must also present the full financial accounts of the Activity
(including Funding, Organisation’s Contributions and Other Contributions). The
financial accounts should be accompanied by certification that all Funds
received were spent for the purpose of the Activity and in accordance with the
Agreement. The certification must be in accordance with subclause
9.6.

    

     

    OTHER
REPORTS

     

    
      5.12
Throughout the Activity Period, the Organisation must also provide adhoc Reports
to the Department concerning:

    

     

    (a)           any
significant developments concerning the Activity; and

     

    (b)           any
significant delays or difficulties encountered in performing the Activity in
accordance with the Agreement.

     

    (c)           any
technical data regarding the performance of equipment or activities in a type
and form specified by the Department.

     

    6.            ASSETS (subclause 1.1 and clause
7)

     

    ASSET
REGISTER

     

    6.1          The
Organisation must for the duration of the Activity Period maintain an Asset
register in the following form and containing the following
information.

     

    
      
        
          
            
              
                
                  
                    
                      
                        	
                                Asset

                                number

                              	 
      	
                                Description

                                of Asset

                              	 
      	
                                Purchase

                                price or

                                total lease

                                cost

                              	 
      	
                                Date of

                                purchase

                                or lease

                              	 
      	
                                Term

                                of

                                lease

                              	 
      	
                                Location

                                of Asset

                              	 
      	
                                Method of and

                                Date on which the

                                Asset was

                                disposed of or

                                written-off

                              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                                  

                              	 
      	
                                  

                              	 
      	
                                  

                              	 
      	
                                  

                              	 
      	
                                  

                              	 
      	
                                  

                              	 
      


                      

                    

                  

                

              

            

          

        

      

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        48

        
          

        

      

      
         


      

    


    7.
AUSTRALIAN GOVERNMENT MATERIAL (subclauses 11.1 to 11.3)

     

    Not
Applicable

     

    8.
INTELLECTUAL PROPERTY (subclause 1.1 and clause 12)

     

    
      
        
          
            
              
                
                  	
                          Description
      of Current Patented

                          Technology/Process

                        	 	
                          Number
      of patents and

                          patent
      applications

                        	 
	
                          Battery
      Circulation System with improved fourway valve

                        	 	 	1	 
	
                          Carbon
      Coating for an Electrode

                        	 	 	1	 
	
                          Compact
      Energy Storage System

                        	 	 	3	 
	
                          Component
      Design

                        	 	 	1	 
	
                          Composite
      End Block for a Battery

                        	 	 	1	 
	
                          Electrolytic
      Storage Battery

                        	 	 	1	 
	
                          End
      Block Constructions for Batteries

                        	 	 	1	 
	
                          Friction
      Welded Battery Component

                        	 	 	1	 
	
                          Method
      of Electrode Reconditioning

                        	 	 	3	 
	
                          Method
      of Joining Bipolar Battery Frames

                        	 	 	1	 
	
                          Spill
      and Leak Containment System for zinc bromine battery

                        	 	 	1	 
	
                          Terminal
      Electrode

                        	 	 	1	 
	
                          Zinc
      bromine Battery with NonFlowing Electrolyte

                        	 	 	4	 
	
                          Total

                        	 	 	20	 


                

              

            

          

        

      

    

    


    9.            CONFIDENTIAL
INFORMATION (subclause 1.1 and clause 13)

     

    COMMONWEALTH
CONFIDENTIAL INFORMATION

     

    9.1            The
Commonwealth’s Confidential Information is:

     

    Not
Applicable

     

    ORGANISATION’S
CONFIDENTIAL INFORMATION

     

    9.2            The
Organisation’s Confidential Information is:

     

    Agreement
Provisions/Schedule/Annexures

     

    Not
Applicable Agreement-related
material

     

    Not
Applicable

     

    10
INSURANCE (subclause 16.1)

     

    
      	
              1.

            	
              Workers
      compensation insurance as required by law where the Organisation carries
      out activities under this
Agreement;

            


    

    


    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        49

        
          

        

      

      
         


      

    

     

    
      	
              2.

            	
              Public
      liability insurance to the value of at least $10 million per claim, or
      occurrence giving rise to a claim, in respect to activities undertaken
      under this Agreement, where occurrence means either a single occurrence or
      a series of occurrences if these are linked or occur in connection with
      one another from one original cause, as the case may
  be;

            


    

     

    
      	
              3.

            	
              Insurance
      over any Asset acquired pursuant to clause 7 of this Agreement for its
      full replacement value;

            


    

     

    
      	
              4.

            	
              Professional
      indemnity insurance for an amount of not less than $1,000,000 (one million
      dollars).

            


    

     

    11.CONFLICT OF
INTEREST (subclause 17.2)

     

    Not
Applicable

     

    12. SUBCONTRACTORS
(subclause 22.1)

     

    12.1
CSIRO Energy Technology,

    CSIRO
Energy Centre

    10 Murray
Dwyer Circuit,

    Steel
River Industrial Park

    Mayfield
West NSW 2304

     

    Proposed
Project Role: Battery host, integration and use of battery, operational strategy
development.

     

    13. ACKNOWLEDGMENT
AND PUBLICITY (subclause 23.1)

     

    
      13.1 The
Organisation must acknowledge the provision of the Funding by the Australian
Government in the following way: In all written material the statement "This
project received funding from the Australian Government through the Department
of the Environment and Water Resources, Australian Greenhouse Office, under the
Advanced Electricity Storage Technologies Programme." or an alternative
statement approved by the Department acknowledging the funding, must be used in
a prominent position within the text of the material. On all signage where the
Organisations logo appears, in relation to the project, it shall be accompanied
by the logo of the Australian Government coat of arms, Department of the
Environment and Water Resources, Australian Greenhouse Office in a form provided
by the Department.

    

     

    14.SPECIFIED
PERSONNEL (subclauses 1.1 and 24.1)

     

    14.1 The
following personnel must complete the following part(s) of the
Activity:

     

    Robert
Parry, Chief Executive Officer - Marketing, Human Resources and
Finance

    Mr Bjorn
Jonshagen, Project Manager/Principal Engineer – Innovation. Dr Touma Issa,
Principal Research Chemist

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        50

        
          

        

      

      
         


      

    


    
      15.COMPLIANCE
WITH LAWS AND POLICIES (subclauses 25.1 and 25.2)

    

     

    
      15.1 The
Organisation must comply with the following laws in carrying out the
Activity:

    

     

    ·       Equal
Opportunity for Women in the Workplace Act 1999;

    ·       Racial
Discrimination Act 1984;

    ·       Sex
Discrimination Act 1984;

    ·       Disability Discrimination Act
1992;

    ·       Crimes Act 1914;
and

    ·       Criminal
Code Act 1995.

     

    15.2 The
Organisation must comply with the following policies in carrying out the
Activity:

     

    Not
Applicable

     

    16.CONTACT and
NOTICES (subclause 34.4 and subclause 35.1)

     

    16.1 The
Department’s contact and notice details are as follows:

    Mr John
Russell

    AEST
Program Manager GPO Box 787

    CANBERRA
ACT 2601

    
      	
               
      

            	
              Phone:

            	
              02
      6274 1139

            


    

    
      	
               
      

            	
              Fax:

            	
              02
      6274 1920

            


    

    
      	
               
      

            	
              E-mail:

            	
              john.russell@deh.gov.au

            


    

     

    16.2 The
Organisation’s contact and notice details are as follows:

    
      	
               
      

            	
              Name:

            	
              Mr
      Bjorn Jonshagen

            


    

    
      	
               
      

            	
              Position:

            	
              Project
      Manager/Principal Engineer –
Innovation.

            


    

    
      	
               
      

            	
              Address:

            	
              240
      Barrington Street, Bibra Lake WA,
6163

            


    

    
      	
               
      

            	
              Phone:

            	
              08
      9494 2055 Mobile: 0419 902 138

            


    

    
      	
               
      

            	
              Fax:

            	
              08
      9494 2066 Email: bjorn@zbbenergy.

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        51

        
          

        

      

      
         


      

    


    EXECUTION
CLAUSES

    THIS AGREEMENT is made on the
____________ day of June
2007.

    Executed
by the Parties as an Agreement.

    


    
      
        
          
            
              
                
                  
                    
                      	
                              SIGNED
      for and on behalf of the

                            	 
      	 
      
	
                              COMMONWEALTH
      OF AUSTRALIA

                            	 
      	 
      
	
                              represented
      by the Department of the

                            	 
      	 
      
	
                              Environment
      and Water Resources,

                            	 
      	 
      
	
                              ABN
      34 190 894 983 by Tas
      Sakellaris,

                            	 
      	 
      
	
                              Assistant
      Secretary, Energy Futures

                            	 
      	 
      
	
                              Branch

                            	 
      	
                              sign here in the
      presence of:

                            
	 
      	 
      	 
      
	 
      	 
      	 
      
	
                              print
      name of witness

                            	 
      	
                              witness
      sign here

                            
	 
      	 
      	 
      
	
                              SIGNED
      on behalf of

                            	 
      	 
      
	 
      	 
      	 
      
	
                              ZBB
      Technologies Ltd

                            	 
      	 
      
	 
      	 
      	 
      
	
                              ABN 57 008 958 254, a
      company registered under the Corporations Act 2001 and having its
      registered office at 240 Barrington Street Bibra Lake WA 6163.pursuant to
      section 127(1) of the Corporations Act 2001
      (Cth) by:

                            	 
      	 
      
	 
      	 
      	 
      
	
                              Director

                            	 
      	 
      
	 
      	 
      	
                              sign
      here

                            
	 
      	 
      	 
      
	
                              Name
      of Director

                            	 
      	 
      
	 
      	 
      	
                              please
      print

                            
	 
      	 
      	 
      
	
                              Director/Secretary

                            	 
      	 
      
	 
      	 
      	
                              sign
      here

                            
	 
      	 
      	 
      
	
                              Name
      of Director/Secretary

                            	 
      	 
      
	 
      	
                                

                            	
                              Please
      print

                            


                    

                  

                

              

            

          

        

      

    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        52

        
          

        

      

      
         


      

    

     

    Variation
of Funding Agreement

     

    DEED OF
AGREEMENT

     

    THIS DEED
OF AGREEMENT (“the Deed”) is made
this             day of June 2007.

     

    BETWEEN

     

    THE
COMMONWEALTH OF AUSTRALIA (“the Commonwealth”) of the first part

     

    AND

     

    ZBB Technologies Ltd, ABN 57
008 958 254, of the second part.

     

    RECITALS:

     

    
      	
               
      

            	
              A.

            	
              The
      Commonwealth and the Funding Recipient entered into an agreement dated 21
      June 2007 relating to funding for the Advanced Electricity Storage
      Technologies programme.

            


    

    
      	
               
      

            	
              B.

            	
              The
      Commonwealth and the Funding Recipient wish to vary the agreement,
      referred to in Recital A, as set out
below.

            


    

     

    THE
PARTIES AGREE AND DECLARE AS FOLLOWS:

     

    1.           INTERPRETATION

     

    
      	
              1.1

            	
              “Principal
      Agreement” means the agreement between the Commonwealth and the Funding
      Recipient dated 21 June 2007.

            


    

     

    
      	
              1.2

            	
              The
      Principal Agreement shall be read and construed as one with this Deed and
      shall continue to be in force except as varied by this
    Deed.

            


    

     

    
      	
              1.3

            	
              Unless
      the contrary intention appears in this Deed, an expression used in this
      Deed is taken to have the same meaning as it has in the Principal
      Agreement.

            


    

     

    2.           VARIATIONS

     

    2.1           The
Principal Agreement is hereby varied by:

    a)
deleting “Table 1” in
clause 2.2 of the Schedule and substituting

    “Table 1 - Variation 1 - 26 June
2007” and marked as Annexure A to this
Deed.

     

    3.           ENTIRE
AGREEMENT

     

    
      	
              3.1

            	
              The
      Principal Agreement, as varied by this Deed, comprises the entire
      agreement between the parties.

            


    

     

    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        53

        
          

        

      

      
         


      

    

     

    
      
        
          
            	
                    EXECUTION

                      

                    Executed
      by the parties as a Deed on the date written above.

                      

                    SIGNED
      for and on behalf of the

                    COMMONWEALTH OF
      AUSTRALIA represented by the Department of the Environment and Water
      Resources, ABN 34 190 894 983 by Tas
      Sakellaris, Acting Assistant Secretary, Energy Futures
      Branch

                     

                    in
      the presence of:

                  	
                     
      

                     

                     

                     

                  
	
                    sign
      here

                  


          

        

      

    

    


    
      
        
          
            
              	 	 	 
	
                      print
      name of witness

                    	
                        

                    	
                      witness
      sign here

                    


            

          

        

      

    

    


    
      
        
          
            
              
                
                  
                    	
                            SIGNED
      on behalf of ZBB

                          	 
      	 
      
	
                            Technologies Ltd ABN 57
      008 958 254, a company registered under the

                          	 
      	 
      
	
                            Corporations
      Act 2001 and having its registered office at 240 Barrington Street Bibra
      Lake WA 6163.pursuant to section 127(1) of the Corporations Act 2001
      (Cth) by:

                          	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	
                            Director

                          	 
      	 
      
	 
      	 
      	
                            sign
      here

                          
	 
      	 
      	 
      
	
                            Name
      of Director

                          	 
      	 
      
	 
      	 
      	
                            please
      print

                          
	 	 	 
	 
      	 
      	 
      
	
                            print
      name of witness

                          	
                              

                          	
                            sign
      here

                          


                  

                

              

            

          

        

      

    

     

    Department
of the Environment and Water Resources Funding Agreement



    
      
         


      

      
        54

        
          

        

      

      
         


      

    

     

    ANNEXURE
A


    
      
         


      

      
        55

        
          

        

      

      
         


      

    


    Table
1 - Variation 1 - 26 June 2007

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          	
                                                                  Payment No &

                                                                  Date

                                                                	 	
                                                                  Milestone activity

                                                                	 	
                                                                  Amount

                                                                	 	 	
                                                                  GST

                                                                	 	 	
                                                                  Total

                                                                	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 
	
                                                                  1–
      29 June 2007

                                                                	 	
                                                                  Signing
      of Agreement – Milestone 1

                                                                	 	 	250,000	 	 	 	25,000	 	 	 	275,000	 
	
                                                                   
      

                                                                	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                  2
      - 31 October 2007

                                                                	 	
                                                                  Progress
      Report 1 - Completion of Milestone 1 to the satisfaction of the
      Commonwealth.

                                                                	 	 	100,000	 	 	 	10,000	 	 	 	110,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                  3 –
      31 January 2008

                                                                	 	
                                                                  Progress
      Report 2 - Completion of Milestone 2 to the satisfaction of the
      Commonwealth.

                                                                	 	 	230,000	 	 	 	23,000	 	 	 	253,000	 
	
                                                                   
      

                                                                	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                  4 –
      30 April 2008

                                                                	 	
                                                                  Progress
      Report 3 - Completion of Milestone 3 to the satisfaction of the
      Commonwealth.

                                                                	 	 	500,000	 	 	 	50,000	 	 	 	550,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                  5 -
      30 June 2008

                                                                	 	
                                                                  Progress
      Report 4- Completion of Milestone 4 to the satisfaction of the
      Commonwealth.

                                                                	 	 	500,000	 	 	 	50,000	 	 	 	550,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                  6 -
      31 January 2009

                                                                	 	
                                                                  Progress
      Report 5 - Completion of Milestone 5 to the satisfaction of the
      Commonwealth.

                                                                	 	 	500,000	 	 	 	50,000	 	 	 	550,000	 
	
                                                                   
      

                                                                	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                  7 –
      30 June 2009

                                                                	 	
                                                                  Progress
      Report 6 - Completion of Milestone 6 to the satisfaction of the
      Commonwealth.

                                                                	 	 	700,000	 	 	 	70,000	 	 	 	770,000	 
	
                                                                   
      

                                                                	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                  8 -
      31 January 2010

                                                                	 	
                                                                  Progress
      Report 7 - Completion of Milestone 7 to the satisfaction of the
      Commonwealth.

                                                                	 	 	100,000	 	 	 	10,000	 	 	 	110,000	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                                  9 –
      15 June 2010

                                                                	 	
                                                                  Final
      Report - Completion of Milestone 9 to the satisfaction of the
      Commonwealth. Final report accepted by AGO. Final acquittal report
      submitted. Public information report printed and
    distributed.

                                                                	 	 	182,218	 	 	 	18,222	 	 	 	200,440	 
	 
      	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	 
      	 	
                                                                  TOTAL

                                                                	 	 	3,062,218	 	 	 	306,222	 	 	 	3,368,440	 


                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    Department
of the Environment and Water Resources Funding Agreement


    
      
         


      

      
        56