AGREEMENT BETWEEN MINISTER FOR STATE DEVELOPMENT, …

AGREEMENT BETWEEN

MINISTER FOR STATE DEVELOPMENT, JOBS AND TRADE

AND

Recipient

FINANCIAL ASSISTANCE AGREEMENT FOR

Project

RHF FAA 2021-Name of Recipient – Name of Project Page 2

Contents

1. DEFINTIONS AND INTERPRETATION ................................................................................. 5

1.1 Definitions ..................................................................................................................... 5

1.2 Interpretation ................................................................................................................ 8

2. DEPARTMENT ......................................................................................................................... 10

3. GRANT ....................................................................................................................................... 10

3.1 Payment ....................................................................................................................... 10

3.2 Approved Project ....................................................................................................... 10

3.3 No Changes ................................................................................................................. 11

3.4 No Endorsement ........................................................................................................ 11

3.5 Additional Expenditure ............................................................................................ 11

4. COMMENCEMENT OF PROJECT ....................................................................................... 11

5. RECIPIENT’S GENERAL UNDERTAKINGS ...................................................................... 11

6. REPRESENTATIONS AND WARRANTIES........................................................................ 12

6.1 Recipient’s Warranties ............................................................................................. 12

6.2 Made Continuously ................................................................................................... 13

7. BENEFITS TO WESTERN AUSTRALIAN INDUSTRY AND OTHERS ......................... 13

8. INTELLECTUAL PROPERTY ................................................................................................ 13

9. RECORDS, REPORTS, INFORMATION AND AUDIT ...................................................... 14

9.1 Records ........................................................................................................................ 14

9.2 Reporting ..................................................................................................................... 14

9.3 Evaluation .................................................................................................................... 14

9.4 Notification .................................................................................................................. 14

9.5 Information .................................................................................................................. 14

9.6 Audit Rights ................................................................................................................ 15

10. REPAYMENT AND RETENTION OF THE FUNDING ....................................................... 15

11. ACKNOWLEDGMENTS, PUBLICATIONS AND PUBLICITY ......................................... 16

12. INSURANCE ............................................................................................................................. 16

12.1 Insurance to be Obtained and Maintained .......................................................... 16

12.2 Undertakings in Relation to Insurance ................................................................ 17

12.3 Survival ........................................................................................................................ 17

13. INDEMNITY ............................................................................................................................... 18

14. LIMITATION OF LIABILITY ................................................................................................... 18

15. ASSUMPTION OF RISKS FOR THE PROJECT ................................................................ 18

16. DEFAULT .................................................................................................................................. 19

16.1 Event of Default .......................................................................................................... 19

16.2 Clause 16.1(a) Unaffected ....................................................................................... 20


16.3 Consequences of an Event of Default ................................................................. 20

16.4 Survival ........................................................................................................................ 20

17. ASSETS ..................................................................................................................................... 20

18. RISK MANAGEMENT ............................................................................................................. 21

19. FREEDOM OF INFORMATION ACT 1992, FINANCIAL MANAGEMENT ACT 2006 AND

AUDITOR GENERAL ACT 2006 ........................................................................................... 21

20. ETHICAL CLEARANCES ....................................................................................................... 21

21. REGULATION AND APPROVALS ....................................................................................... 21

22. GST ............................................................................................................................................. 21

22.1 Definitions ................................................................................................................... 21

22.2 Prices do not include GST ...................................................................................... 22

22.3 Recipient must pay GST .......................................................................................... 22

22.4 Tax Invoice .................................................................................................................. 22

22.5 Reimbursements ........................................................................................................ 22

22.6 Payments ..................................................................................................................... 22

23. ACCESS TO LAND ................................................................................................................. 22

24. NEGATION OF EMPLOYMENT, PARTNERSHIP AND AGENCY ................................. 22

25. ASSIGNMENT .......................................................................................................................... 23

26. NOTICES ................................................................................................................................... 23

26.1 Notices.......................................................................................................................... 23

26.2 Receipt of Notices ..................................................................................................... 23

26.3 Address for Service .................................................................................................. 23

27. WAIVER ..................................................................................................................................... 24

28. DEPARTMENT’S RIGHTS ..................................................................................................... 24

29. REMEDIES ................................................................................................................................ 24

30. ENTIRE AGREEMENT ............................................................................................................ 24

31. SEVERABILITY ........................................................................................................................ 24

32. COSTS ....................................................................................................................................... 24

33. GOVERNING LAW AND JURISDICTION ........................................................................... 25

34. VARIATION ............................................................................................................................... 25

35. FORCE MAJEURE .................................................................................................................. 25

36. ALTERNATIVE DISPUTE RESOLUTION ........................................................................... 25

37. Confidentiality ......................................................................................................................... 26

38. EXECUTION.............................................................................................................................. 27

CAPITAL WORKS PROJECT SCHEDULE 1 – ITEMS .............................................................. 28

CAPITAL WORKS PROJECT SCHEDULE 2 – PROJECT PLAN ............................................ 31

FEASIBILITY STUDY SCHEDULE 1 – ITEMS ............................................................................. 32


FEASIBILITY STUDY SCHEDULE 2 – PROJECT PLAN........................................................... 35

This Agreement is made on the ______ day of ____________ 2020

BETWEEN

MINISTER FOR STATE DEVELOPMENT, JOBS AND TRADE, the body corporate

referred to in section 5 of the Industry and Technology Development Act 1998, of Level 11,

1 William Street, Perth, Western Australia (“Minister”)

AND

[insert Recipient Name] (ABN XX XXX XXX XXX)

[insert Recipient address] ("Recipient")

BACKGROUND

A. The Western Australian Renewable Hydrogen Strategy (Strategy) sets out the Western

Australian Government’s vision for WA to be a significant producer, exporter and user of

renewable hydrogen.

B. A key action of the Strategy is the Renewable Hydrogen Fund (Fund). The Fund is

designed to assist projects to develop Western Australia’s renewable hydrogen industry

and attract investment in hydrogen infrastructure.

C. The Fund offers financial support to facilitate the development of a renewable hydrogen

industry in Western Australia and accelerate the development and promotion of Western

Australia’s ability to supply cost-competitive hydrogen to the global and/or domestic

economy through investment in:

(i) feasibility studies to support investment decisions for a proposed project; and

(ii) projects to support the building of pilot/demonstrations and/or early

commercialisation capital works projects (which may include a research and

development component).

D. The Minister has the function of providing financial support to further the objects of the

Industry and Technology Development Act 1998 (WA) (Act).

E. The Minister has agreed to provide funding to the Recipient as a contribution to support

the undertaking of the Project as described in the Application.

F. The Recipient has agreed to use its reasonable endeavours to ensure that the Project

delivers benefit to Western Australia.

G. The Minister is required by law to ensure accountability for public money and the

Recipient is required to be accountable for all Grant monies paid under this Agreement.

H. The Parties now wish to record the terms and conditions upon which the approved Grant

will be provided by the Minister to the Recipient for the Project.


The Parties agree the follows:

1. DEFINTIONS AND INTERPRETATION

1.1 Definitions

In this Agreement unless the context otherwise requires:

Agreement means this Financial Assistance Agreement, including its Background and

Schedules.

Application means the Recipient’s form and all its attachments submitted through the

SmartyGrants website outlining the proposed Project, and any other supporting or additional

information provided by the Recipient in relation to the Project.

Asset means any personal, real or incorporated property, with a value of $5,000 or more, but

shall not mean Intellectual Property.

Associates means any officer, employee, agent, consultant, contractor, nominee, licensee or

adviser of the State.

Authorisation means any consent, authorisation, registration, filing, agreement, notarisation,

clearance, certificate, permission, licence, permit, approval, authority, or exemption from, by or

with, an Authority, judicial body, stock exchange, or under and Laws, including a renewal or

variation of the same.

Authorised Officer means a person appointed by the Department or by the Recipient to act

as its authorised officer under this Agreement.

Authority means:

(a) any Government Agency, administrative or judicial body or tribunal; and

(b) any electricity, telecommunications, gas or other Utility Company.

Business Day means a day, not being a Saturday, Sunday or a public holiday, on which

banks are open for general banking business in Western Australia.

Claim means any claim, proceeding, cause of action, action, demand or suit (including by way

of claim for contribution or an indemnity).

Corporations Act means the Corporations Act 2001 (Cth).

Cth means the Commonwealth.

Department means the Western Australian Department of Jobs, Tourism, Science and

Innovation.

Event of Default means an event so described in clause 16.1

Execution Date means the date when this Agreement has been executed by the Parties.

Force Majeure Event means:

(a) an event that is not within the reasonable control of the affected Party, including natural

disaster, acts of war, riots, strikes, weather or oceanic conditions or related issues

indirectly or directly outside of the affected Party’s control (except for in the case of the

Recipient only, lack of funds which is excluded from this definition) and which was not


known to the Parties at the time of entering into this Agreement or could not have been

reasonably foreseen by the Parties at the time of entering into this Agreement; or

(b) the COVID-19 pandemic and any Commonwealth or State government COVID-19

related changes in Law in response to it, including without limitation other changes or

measures implemented by the Commonwealth or State governments, whether existing

at the date of this Agreement or subsequently coming into existence during the Term of

this Agreement and which could not have been reasonably foreseen by the Parties at

the Execution Date.

Fund means the Western Australian Renewable Hydrogen Fund established by the Western

Australian Government pursuant to the Act as an action arising from the Western Australian

Renewable Hydrogen Strategy and referred to in Backgrounds B and C.

Government Agency means any organ of government, government entity, government

authority, body politic (but excluding any political party) or government department.

Grant means the grant described in Item 1 of Schedule 1.

Insolvency Event means the happening of any of these events:

(a) an order is made, or an application is made to a court for an order, that a body corporate

be wound up; or

(b) except to reconstruct or amalgamate while solvent, a body corporate:

(i) is wound up or dissolved; or

(ii) resolves to wind itself up or otherwise dissolve itself, or gives notice of intention to

do so; or

(iii) enters into, or resolves to enter into, any form of formal or informal arrangement

for the benefit of all or any class of its creditors, including a scheme of

arrangement, deed of company arrangement, compromise or composition with, or

assignment for the benefit of, all or any class of its creditors; or

(iv) a liquidator or provisional liquidator is appointed (whether or not under an order),

or an application is made to a court for an order, or a meeting is convened or a

resolution is passed, to make such an appointment, in respect of a body corporate;

or

(v) a receiver, manager, receiver and manager, trustee, administrator, controller (as

defined in section 9 of the Corporations Act 2001 (Cth)) or similar officer is

appointed, or an application is made to a court for an order, or a meeting is

convened or a resolution is passed, to make such an appointment, in respect of a

body corporate; or

(c) any step is taken to enforce security over, or a distress, attachment, execution or other

similar process is levied, enforced or served out against any asset or undertaking of a

body corporate; or

(d) the process of any court or authority is invoked against a body corporate, or any asset or

undertaking of a body corporate, to enforce any judgement or order for the payment or

money or the recovery of any property; or

(e) a body corporate:


(i) takes any step to obtain protection, or is granted protection, from its creditors

under any applicable legislation; or

(ii) stops or suspends payment of all, or a class of, its debts; or

(iii) is or is taken by any applicable legislation to be, or states that it is, or makes a

statement from which it may be reasonably deduced that it is:

(A) insolvent or unable to pay its debts when they fall due; or

(B) the subject of an event described in section 459(2)(b) or section 585 of the

Corporations Act 2001 (Cth); or

(iv) is taken to have failed to comply with a statutory demand as a result of the

operation of section 459F(1) of the Corporations Act 2001 (Cth); or

(v) ceases, or threatens to cease, to carry on all or a material part of its business; or

(f) a person becomes insolvent under administration as defined in section 9 of the

Corporations Act 2001 (Cth) or action is taken which could result in the event; or

(g) a person dies, ceases to be of full legal capacity or otherwise becomes incapable of

managing its own affairs for any reason; or

(h) anything analogous or having substantially similar effect to any of the events specified

above happens under the law of any applicable jurisdiction.

Insurance means the insurance referred to in clause 12.

Intellectual Property or IP means all current and future intellectual and industrial property

rights and interests throughout the world, whether registered or unregistered, including:

(a) patents, trademarks, domain names, design rights, plant breeder’s rights, copyright,

circuit layout rights, know-how and the right to confidentiality; or

(b) applications for or rights to apply for registration of any of them; or

(c) rights under licenses and consents in relation to any of them; or

(d) other forms of protection of a similar nature or having equivalent or similar effect to any

of them,

but excludes Moral Rights.

Law means all applicable present and future laws including:

(a) all acts, ordinances, regulations, by-laws, subsidiary legislation, awards and

proclamations of the State of Western Australia and the Commonwealth;

(b) Authorisations;

(c) principles of law or equity;

(d) industry codes including international ISO standards and guidelines; or

(e) ASX listing rules.


Liability means any debt, obligation, Loss, compensation or charge of any kind, including

those that are not prospective or contingent and those the amount of which is not ascertained

or ascertainable.

Loss means any loss, cost (including legal costs, expense, liability (whether arising in

negligence or otherwise)) or damage whether direct, indirect or consequential (including

without limited pure economic loss) present or future, ascertained, unascertained, actual,

prospective or contingent or any fine or penalty.

Milestone means any of the milestones or deliverables referred to in Item 4 of Schedule 1.

Milestone Payment Schedule Table means the table so named and set out in Item 4 of

Schedule 1.

Moral Rights has the meaning given to that term in Part IX of the Copyright Act 1986 (Cth).

Party means a party to this Agreement, and Parties means both of them.

Project means the Project, including initiatives or activities described in Item 2 of Schedule 1

and the Project Plan described at Schedule 2.

Project Plan means the Project Plan for the Project described in Item 5 of Schedule 1 and

Schedule 2.

Recipient’s Premises means the Recipient’s premises as described in the Application.

Records has the meaning in clause 9.1(a).

Related Body Corporate has the same meaning given to it in the Corporations Act 2001

(Cth).

Reports means the reports described in clause 9.2 and Item 6 of Schedule 1.

Risk Management Plan means the plan to be provided by the Recipient in accordance with

clause 18, Item 4 of Schedule 1 and Schedule 2.

Schedule means each Schedule to, and forming part of, this Agreement.

State means the State of Western Australia.

State Government Badge means the State Coat of Arms and associated text, which is used

as the Western Australian State Government Badge.

Term has the meaning set out in Item 3 of Schedule 1.

Utility means any utility service, including water, electricity, gas, telephone, drainage,

sewerage, stormwater and communications services.

Utility Company means any public authority or public or private body that provides a Utility.

1.2 Interpretation

In this Agreement unless the context otherwise requires:

(a) words importing the singular include the plural and vice versa;

(b) words importing any gender include the other gender;


(c) reference to a person includes an individual, the estate of an individual and any type of

entity or body of persons, including a corporation, an incorporated or unincorporated

association or parties in a joint venture, a partnership or a trust and the legal personal

representatives, successors and assigns of that person;

(d) reference to the State includes each and every agency, department, instrumentality and

emanation of the State;

(e) a reference to a statute, ordinance, code or other law includes regulations, by-laws,

rules and other statutory instruments under it for the time being in force and

consolidations, amendments, re-enactments, or replacements of any of them (whether

of the same or any other legislative authority having jurisdiction);

(f) reference to this Agreement or any other instrument include this Agreement or other

instrument as varied or replaced, and notwithstanding any change in the identity of the

Parties;

(g) reference to writing includes any mode of representing or reproducing words in tangible

and permanently visible form, and include e-mails and facsimile transmission;

(h) if a word or a phrase is defined, other parts of speech and grammatical forms of that

word or phrase have a corresponding meaning;

(i) an obligation incurred in favour of two or more persons is enforceable by them jointly

and severally;

(j) if a word or phrase is defined, other parts of speech and grammatical forms of that word

or phrase have corresponding meanings;

(k) reference to this Agreement includes its Background, Recitals, Schedules and

Annexures (if any);

(l) headings are inserted for ease of reference only and are to be ignored in construing this

Agreement;

(m) reference to time is to local time in Perth, Western Australia;

(n) where time is to be reckoned from a day to event, that day or the day of that event is to

be included;

(o) reference to currency is to Australian currency unless otherwise stated;

(p) no rule of construction applies to the disadvantage of a Party on the basis that that Party

put forward this Agreement or any part of this Agreement;

(q) a reference to any thing is a reference to the whole and each part of it, and a reference

to a group of persons is a reference to all of them collectively and to each of them

individually but nothing herein shall mean that part performance of an obligation

amounts to full performance thereof;

(r) when the day or last day for doing an act is not a Business Day then the day or last day

for doing the act will be the directly preceding Business Day in the place where there act

is to be done;

(s) if the word “including” or “includes” is used, the words “without limitation” are taken to

immediately follow;


(t) the phrases “described in”, “set out” and “specified in” shall all read as if the words

“expressly” or “impliedly” appeared immediately before them; and

(u) reference to a contractor or subcontractor means a contractor or sub-contractor at any

tier.

2. DEPARTMENT

(a) The Department acts for and on behalf of the State and may at any time perform any of

the State’s obligations and exercise the State’s rights and powers in and under this

Agreement, including taking any actions, making any requests and giving or withholding

any consents or approvals which the State has the right or obligation to take, make, give

or withhold under this agreement or at Law.

(b) The Recipient agrees to treat any notices or other communications (including any

requests) from the Department as being from and on behalf of the State.

(c) Where the Recipient has any obligation to remit or pay monies to the State, the

Recipient must make payment to the State in the manner requested by the State,

including making payment into a bank account nominated by the State if so requested,

which may be a bank account held in the name of the Department.

3. GRANT

3.1 Payment

Subject to the terms of this Agreement, the Department agrees to pay the Grant to the

Recipient in the instalments and at the time specified in Item 4 of Schedule 1.

3.2 Approved Project

(a) The Recipient must use the Grant solely for carrying out the Project in accordance with

this Agreement.

(b) If the cost to the Recipient in carrying out the Project is less than the amount of the

Grant, the Recipient must immediately pay the difference to the Department.

(c) The Recipient must carry out the Project fully, properly, competently, professionally,

carefully, diligently and efficiently in accordance with the Project Plan and comply with

the terms and conditions of this Agreement. The Recipient must use the Grant efficiently

and not extravagantly, wastefully or irresponsibly.

(d) The Project must comply with the conditions for eligibility for the Grant at all times, which

include that the Recipient must ensure:

(i) that the Project must commence within six (6) months of the Execution Date and

be completed within the timeframe specified in the Term;

(ii) it has sufficient experience and capability in delivering projects of similar scale and

complexity;

(iii) that appropriate resources are allocated to successfully administer and deliver the

Project;

(iv) that it provides a minimum cash funding contribution of 25 per cent of the total

Project cost as specified in Item 4 of Schedule 1;


(v) that no more than ten (10) per cent of the Grant funding (other than equipment and

materials purchased) is to be used towards overseas expenditure; and

(vi) that the Project will provide value for money and will contribute to the delivery of

the objectives and outcomes of the Fund and the Western Australian Renewable

Hydrogen Strategy pursuant to clause 7 of this Agreement.

(e) The Department may withhold or defer the payment of any instalment or portion of

instalment of the Grant due to delays in the Project or delays in acquittal of instalments

of the Grant previously paid to the Recipient.

3.3 No Changes

(a) The Recipient must not make any changes to the Project, the Project Plan or any

agreed budget without the prior written consent of the Department. Consent will be

granted or withheld at the Department’s absolute discretion.

(b) The Recipient must immediately notify the Department in writing if any part of the Grant

has not been used in accordance with this Agreement.

3.4 No Endorsement

The Recipient agrees that nothing in this Agreement constitutes an endorsement by the State

or the Department of any goods or services provided by the Recipient to any person.

3.5 Additional Expenditure

The Recipient acknowledges and agrees that it is solely responsible for any expenditure in

relation to the Project which exceeds the Grant. The State and the Department have no

liability whatsoever to provide any additional funding to the Recipient over and above the

Grant.

4. COMMENCEMENT OF PROJECT

(a) Subject to clause 4(b), if the Recipient, within six (6) months after the Execution Date,

without the Department’s prior written consent, does not commence the Project (proof

whereof to the Department’s satisfaction shall be on the Recipient), then the Recipient

shall immediately pay to the Department any instalment of the Grant that has been

received by the Recipient.

(b) If the Department considers it fair and reasonable to do so, and if the Department

considers that the Recipient has at all times acted and will continue to act reasonably

and in good faith, the Department, may, at its total discretion, extend the aforesaid 6

month period by another 3 months.

5. RECIPIENT’S GENERAL UNDERTAKINGS

The Recipient covenants and agrees in favour of the Department that during the Term:

(a) (representation or warranty incorrect) it will notify the Department promptly if any

representation or warranty made or taken to be made by or on behalf of the Recipient in

or in connection with this Agreement is found to be incorrect or misleading when made

or taken to be made, or has become or is likely to become untrue;

(b) (performance of obligations) it will at all times duly perform and observe its obligations

arising out of or in connection with this Agreement and will promptly inform the

Department of any occurrence which might have a materially adverse effect on the

Recipient’s ability to perform this Agreement;


(c) (authorisations) it will comply with the terms of each Authorisation necessary to enter

into this Agreement, observe obligations under it and allow it to be enforced and it will

obtain and renew on time each such Authorisation;

(d) (acknowledge) it acknowledges that funding provided under this Agreement is public

money and is subject to compliance by the Recipient with the terms of the Grant as

detailed in this Agreement;

(e) (undertake) it will undertake its responsibilities under this Agreement with integrity, good

faith and probity in accordance with good corporate governance practices;

(f) (cooperate) it will cooperate with the Department in the administration of this Agreement;

(g) (laws) it will comply with all relevant Laws;

(h) (inspection) it will permit the Department, any officers of the State or any other person

authorised by any of them to enter the Recipient’s Premises at any reasonable time

(acting reasonably at all times and with prior written notice to the Recipient of not less

than 10 Business Days) to determine whether the Recipient is performing its obligations

under this Agreement, provided that any person entering the Recipient’s Premises does

so in a manner so as to cause minimal disruption to the Recipient and its business.

6. REPRESENTATIONS AND WARRANTIES

6.1 Recipient’s Warranties

The Recipient represents and warrants that:

(a) it is duly authorised and has the power to enter into and observe its obligations under

this Agreement;

(b) its obligations under this Agreement are valid and binding and are enforceable in

accordance with their terms;

(c) all Authorisations, registrations, consents, approvals licences and permits which are or

will be required in connection with the performance by the Recipient of its obligations

under this Agreement have been or will be obtained or effected and are or will remain in

force and effect for as long as necessary;

(d) to the best of its knowledge or belief there is no litigation, arbitration or administrative

proceedings currently taking place, pending or threatened against the Recipient which

could have a materially adverse effect on the Recipient’s ability to perform this

Agreement;

(e) to the best of its knowledge or belief this Agreement and performance under it does not

violate any law or government order or decree or any consent, registration, approval,

licence or permit or agreement, order or award binding on the Recipient;

(f) all information provided by or on behalf of the Recipient to the Department relating to the

Recipient’s affairs and this Agreement are true, accurate and complete and, without

limiting this clause 6.1(f), all financial information provided by or on behalf of the

Recipient to the Department is, in all material respects, a true, fair and accurate

statement of its financial position as at the date of preparation of the information;

(g) Except as otherwise disclosed in writing to the Department in the Application, to the best

of its knowledge after making diligent enquiry, no conflict of interest exists or is likely to

arise in the performance of its obligations under this Agreement;


(h) All information provided to the Department in the Application is true, correct and

complete in all material respects and is not misleading;

(i) it has, after diligent inquiry and investigation, fully disclosed to the Department all

material information which could reasonably be regarded as affecting in any way the

Department’s decision to enter into this Agreement; and

(j) it will comply with all prior representations made by it in accordance with this Agreement.

6.2 Made Continuously

The representation and warranties made by the Recipient under clause 6.1 are taken to be

made continuously throughout the Term.

7. BENEFITS TO WESTERN AUSTRALIAN INDUSTRY AND OTHERS

The Recipient acknowledges that underlying the Grant is the Department’s belief that it will

provide benefits to Western Australia and therefore that the Recipient will seek to ensure that

the Project delivers benefits and opportunities to Western Australia consistent with the objects

of the Fund.

8. INTELLECTUAL PROPERTY

(a) Intellectual Property rights that may exist in an Application and the Reports provided in

this Agreement will vest in the Recipient at the time of creation.

(b) This Agreement does not affect the ownership of pre-existing Intellectual Property of a

Party. Any part of an Application and the Reports considered to contain any Intellectual

Property rights of the Recipient should be clearly identified by the Recipient.

(c) The Recipient grants to the Department a worldwide, permanent, irrevocable, royalty

free, non-exclusive licence (including rights of sub-licence), to use, reproduce, adapt

and communicate the information contained in the Application and the Reports:

(i) for the purpose of administering the Fund and the WA Renewable Hydrogen

Strategy as amended from time to time and;

(ii) the sharing of the information by the Department within the Department of Jobs,

Tourism, Science and Innovation, or with another Western Australian Department,

or Western Australian Minister, Parliament or parliamentary committee in

accordance with the Department’s legitimate interests;

(iii) The administration, management, auditing and evaluation of the Grant funding; or

(iv) where the use, reproduction and publication of the material is authorised or

required by law.

(d) The licence rights granted to the Department under clause 8(c) does not include the

rights to exploit the Intellectual Property for commercial purposes.

(e) If an Application or a Report contains information belonging to a third party, the

Recipient must use its best efforts to ensure it has in place all necessary consents from

such third parties sufficient to allow the Department to deal with the information or any

Reports in accordance with this clause 8(c) and this Agreement

(f) The Recipient must indemnify the Department, State, its officers, agents, contractors

(the Indemnitee) against all claims, demands, suits, liabilities, costs, expenses,

damages and losses suffered or incurred by the Indemnitee arising out of or in


connection with any actual or alleged infringement of a third party’s Intellectual Property

rights.

(g) The indemnity referred to in this clause 8(f) survives the expiration or termination of this

Agreement.

9. RECORDS, REPORTS, INFORMATION AND AUDIT

9.1 Records

(a) The Recipient shall keep proper, detailed, accurate, complete and up-to-date written

Records of:

(i) its income, expenditure and financial commitments in relation to this Agreement or

the Project (including bills, accounts and invoices); and

(ii) the activities, performance, progress, successes, achievements, setbacks, failures

and remedial actions in relation to this Agreement or the Project.

(b) Records must be kept for seven years after completion of the Project, or five years after

the Execution Date, whichever comes later.

(c) The Department may request the Records at all reasonable times by written request to

the Recipient of not less than 5 Business Days.

(the Records)

9.2 Reporting

The Recipient must comply with the reporting requirements set out in Item 6 of Schedule 1. All

such Reports must be in writing and properly detailed, accurate, complete and up-to-date.

9.3 Evaluation

The Recipient must use all reasonable endeavours to ensure that it is available, upon request,

to contribute to, and participate in, evaluation (as reasonably determined by the Department)

relating to the Project during the Term, and for at least four years after the conclusion of this

Agreement.

9.4 Notification

(a) The Recipient must immediately notify the Department in writing of any legal

proceedings or debt recovery actions against the Recipient or any of its officers or

employees, where such legal proceedings could have a materially adverse effect on the

ability of the Recipient to perform its obligations under this Agreement.

(b) Any information provided under clause 9.4(a) above shall be provided on a confidential

basis, and may only be used by the Department for the purposes of considering or

enforcing its rights under this Agreement.

9.5 Information

(a) The Recipient must promptly provide to the Department within 10 Business Days after a

request in writing to the Department any information and documents (including

supporting evidence) in connection with the Project or this Agreement that the

Department reasonably requests from time to time, including, without limitation, any

information and documents (including supporting evidence) which the Department

requires in considering whether the Department is or should be satisfied of or with any

matter in connection with the Project or this Agreement.


(b) If and when:

(i) any document, representation, warranty or information previously provided under

this Agreement has changed and that change would, or might reasonably be

considered to, result in, or cause, circumstances which would, or might reasonably

be considered to, adversely affect the ability of the Recipient to comply with its

obligations under this Agreement; or

(ii) any accounts or financial statements provided by the Recipient under this

Agreement have been replaced by later accounts or financial statements since

having been provided to the Department,

the Recipient must provide the Department with full details of the change or with

updates copies of the accounts or financial statements (as the case may be).

(c) All information and documentation provided by the Recipient to the Department

hereunder must be true, accurate, complete, sufficiently detailed, up-to-date and in no

way misleading or deceptive.

9.6 Audit Rights

(a) The Department may arrange, at its own cost, for an independent audit to be carried out

of the Recipient’s activities and finances that relate directly to the Project and the Grant.

If the Department arranges for an independent audit to be carried out:

(i) the Department must provide reasonable written notice to the Recipient that the

Department has arranged for an independent audit to be carried out;

(ii) the Recipient must allow all persons appointed by the Department to carry out the

independent audit to have full access to the relevant Records of the Recipient for

the purpose of carrying out the independent audit; and

(iii) the Recipient must allow the Auditor General for the State, the Internal Audit

Branch of the Department, or an authorised representative, to have access to and

examine relevant Records concerning the Project and the Grant, during normal

business hours upon giving not less than ten (10) Business Days’ written notice to

the Recipient.

(b) Where the Department considers that any Record provided by the Recipient under this

Agreement is incorrect, out-of-date, incomplete or inaccurate and arranges for an

independent audit to be carried out in respect of that information or evidence, and where

the audit substantiates the Department’s concern, then the independent audit will be at

the Recipient’s expense.

(c) This clause 9.6 survives the expiration or termination of this Agreement.

10. REPAYMENT AND RETENTION OF THE FUNDING

(a) At the completion of the Project or the expiration or termination of this Agreement

(whichever occurs first):

(i) the Recipient must remit to the Department within 10 Business Days any part of

the Grant which the Department has paid and which has not been used or

committed in accordance with this Agreement; and

(ii) the Department will retain, and has no obligation to make any further payment of,

any unpaid part of the Grant.


11. ACKNOWLEDGMENTS, PUBLICATIONS AND PUBLICITY

(a) The Recipient is not required to publicly disclose any information which it reasonably

considers may prejudice the protection, commercialisation or otherwise of any IP,

including IP created under or in connection with the Project, or any other information

which it considers should not be publically disclosed including, but not limited to,

information that it considers contains confidential, commercial-in-confidence or personal

information. However, the Recipient must notify the Department in general terms as to

the reasons for its inability or unwillingness to disclose information under this

Agreement.

(b) When, at any time during or after completion of the Project, the Recipient publishes or

participates in the publication of media releases, promotional material, website material,

books, articles (including journal articles and full conference papers), television or radio

programs, newsletters or other literary or artistic works which relate to the Project, the

Recipient must:

(k) acknowledge, at a prominent place in the publication, the support of the State,

including where appropriate and possible, by using the State Government Badge

and/or text acknowledgment provided to the Recipient by the Department; and

(ii) stipulate in clear and express terms that the State does not endorse any

information, product, process or outcome, arising from or in relation to the Project.

(c) The Department recognises and accepts that on occasion, the Recipient may conduct

commercially sponsored events and programs at which it may be inappropriate to

acknowledge the State. All Parties shall act reasonably in this regard.

12. INSURANCE

12.1 Insurance to be Obtained and Maintained

(a) The Recipient must obtain and maintain (or procure the obtaining and maintenance of)

during the Term:

(i) workers’ compensation/employers indemnity insurance in accordance with the

provisions of the Workers Compensation and Injury Management Act 1981 (WA)

(or any other Law relevant and applicable), including cover for common law liability

for an amount not less than $50,000,000 for any one event in respect of workers of

the Recipient. The insurance policy must be extended to indemnify the

Department as principal for claims and liability under section 175(2) of the Workers

Compensation and Injury Management Act 1981 (WA).

(ii) public liability insurance in the minimum amount of $20,000,000 for any one

occurrence and unlimited in the aggregate which must be extended to indemnify

the Department to the extent of the Department’s vicarious liability arising out of

the negligent acts or omissions of the Recipient in the performance or non-

performance of the Project and/or works or services in respect of the Project by

the Recipient in connection with the Agreement; and

(iii) professional indemnity insurance in respect of the Recipient which must:

(A) cover fraud, dishonesty, defamation, breach of Intellectual Property rights;

(B) provide indemnity cover in the minimum amount of $5,000,000 per claim;


(C) extend to the contractually assumed liability of the Recipient under the

indemnities provided in this Agreement;

(D) provide cover until 24 months after the expiry of the Term or earlier

termination of this Agreement; and

(E) provide cover for liability under the Australian Competition and Consumer

Law 2010 (Cth).

(b) The Recipient must take out the Insurance required by clause 12.1(a) with:

(i) an Australian Prudential Regulatory Authority approved insurer; or

(ii) an overseas insurer with a Standard and Poor’s, or any other internationally

recognised financial rating Agency, with a credit rating of at least A minus (A-); or

(iii) an insurer established under either Commonwealth or State law.

(c) The Recipient must provide to the Department upon execution of this Agreement and

thereafter on demand from time to time:

(i) certificates of currency for the insurance policies required to be taken out under

clause 12.1(a);

(ii) copy of the Recipients’ signed and audited annual financial statements for the then

current year on an annual basis; and

(iii) a declaration in the prescribed form satisfactory to the Department from the

Recipient’s insurer or insurance broker confirming that the insurance requirements

under this Agreement have been met.

12.2 Undertakings in Relation to Insurance

The Recipient must use its best endeavours to:

(a) pay or ensure the payment of all premiums and amounts necessary for effecting and

keeping up the Insurance before the same are due and obtain a receipt upon payment;

(b) if requested, provide to the Department as soon as practicable after the Recipient

receives the request, a copy of any certificate of currency, cover note, receipt and other

usual evidences of the insurance on an annual basis during the Term;

(c) not do or allow to be done anything which may vitiate, invalidate, prejudice or render

ineffective any Insurance;

(d) provide written notice of the Department of any enforced, conducted or settled claims

related to the Project under any policy of Insurance;

(e) comply with the requirements of the insurer in relation to the Insurance at all times so as

to prevent the invalidation of the policy or policies of Insurance and not to do, permit or

suffer to be done any act, matter, thing or other circumstance which might not prejudice

the Insurance or reduce the obligations of the insurer; and

(f) not at any time reduce the amount of the Insurance or transfer or change the same to

any other insurer without providing written notice to the Department.

12.3 Survival

The obligations under this clause 12 survives the expiration or termination of this Agreement.


13. INDEMNITY

(a) The Recipient hereby agrees to indemnify and keep indemnified the State and the

Department, and to hold the State and the Department, and their respective officers,

employees and agents harmless against all Claims, Loss and Liability (including legal

fees) claimed, suffered or incurred by the State or the Department, or any of their

respective officers, employees and agents whether before or after the date of this

Agreement arising out of or in connection with the Project, this Agreement and any

related matter, including without limitation:

(i) any breach of a term, condition, an obligation or warranty under this Agreement by

the Recipient or any of its officers, employees, agents or contractors (at any tier);

(ii) any act or omission of the Recipient or any of its officers, employees, agents or

contractors (at any tier);

(iii) any negligent or tortious act or omission by the Recipient or any of its officers,

employees, agents or contractors (at any tier) which relates directly or indirectly to

the Project, the Agreement and any related matter; or

(iv) any breach of a Law by the Recipient, or any of its officers, employees, agents or

contractors (at any tier) which relates directly or indirectly to the Project, the

Agreement and any related matter.

(b) The indemnity under this clause 13 shall survive expiration or termination of this

Agreement.

(c) The obligations under this clause 13 survives the expiration or termination of this

Agreement.

14. LIMITATION OF LIABILITY

(a) The State and the Department are not responsible or liable in any way for the risks, or

the successes or otherwise of the Project or for any Claims or Losses suffered or

incurred by the Recipient in undertaking the Project. The Recipient releases the State

and the Department from all Liability suffered or incurred by the Recipient in relation to

one or more of the Project, this Agreement and any related matter and agrees that

neither it nor any Related Body Corporate will make a Claim against the State or any of

the State’s Associates arising directly or indirectly in relation to one or more of the

Project, this Agreement and any related matter. This clause 14 may be pleaded by the

State, the Department or its Associates as a bar to any proceedings commenced by the

Recipient against the State, the Department or its Associates in relation to one or more

of the Project, this Agreement and any related matter.

(b) If the Grant funds are insufficient for the Recipient to properly fulfil its obligations under

this Agreement, the Recipient must still fulfil its obligations at its own cost.

(c) The obligations under this clause 14 survives the expiration or termination of this

Agreement.

15. ASSUMPTION OF RISKS FOR THE PROJECT

(a) The Recipient is fully responsible for the performance of the Project and for ensuring

compliance with the requirements of this Agreement and all Laws, and will not be

relieved of that responsibility because of any:

(i) involvement by any third party in the performance of the Project;


(ii) payment of the Grant made to the Recipient for the Project;

(iii) subcontracting of all or any part of the works to be carried out by the Project.

(b) The Recipient accepts all risks and costs in respect of the Project, the conduct of the

works for the Project, including the design, construction, commissioning and operations

of the Project.

(c) The Recipient is the prime contractor in all respects for the purposes of the Project, this

Agreement and any related matter.

(d) The obligations under this clause 15 survives the expiration or termination of this

Agreement.

16. DEFAULT

16.1 Event of Default

The Department and the Recipient agree that it is an Event of Default if:

(a) in the reasonable opinion of the Department, the Recipient:

(i) is not satisfactorily progressing with the Project; or

(ii) has withheld or is withholding information or access to documentation relevant to

this Agreement or the Project which the Department has sought or seeks;

(b) the Recipient breaches an obligation under this Agreement which cannot be remedied;

or

(c) the Recipient breaches any remediable obligation under this Agreement and that breach

is not remedied within the period of time specified in the Department’s written notice to

the Recipient requiring the breach to be remedied; or

(d) the Recipient repudiates this Agreement; or

(e) a representation or warranty made or taken to be made by or on behalf of the Recipient

under or relating to this Agreement is found or is notified by the Recipient to be

materially incorrect or misleading when made or taken to be made; or

(f) an undertaking given to the Department or its solicitors by the Recipient (or an officer,

employee, agent or contractor of the Recipient) relating to this Agreement is breached or

not wholly performed within a reasonable period specified in the undertaking or, if no

period is specified, within five Business Days from the date of the undertaking; or

(g) a person is appointed under legislation to investigate or manage any part of the affairs of

the Recipient which appointment would have a material impact on the Recipient’s ability

to perform this Agreement; or

(h) to the extent permitted by the Corporations Act, an Insolvency Event occurs in respect of

the Recipient; or

(i) any aspect of this Agreement is or becomes wholly or partly void, voidable,

unenforceable or ineffective, or is claimed to be so by the Recipient; or

(j) the Recipient persistently, regularly, consistently or continually breaches this

Agreement. This clause does not limit any other part of this clause 16.1 in any way; or


(k) in the opinion of the Department the reputation of the State or the Department is, or is

likely to be, damaged by any act or omission of, or any conduct by, the Recipient; or

(l) the Department and the Recipient have mutually agreed to the termination of this

Agreement.

16.2 Clause 16.1(a) Unaffected

Neither clause 16.1(a) nor its operation shall be restricted or reduced by any other provision of

this Agreement (including without limitation clause 9).

16.3 Consequences of an Event of Default

If an Event of Default occurs during the Term, the Department may:

(a) suspend the performance of its obligations under this Agreement including an obligation

to pay the Grant; or

(b) terminate this Agreement with written notice to the Recipient, whereupon:

(i) the Department shall cease to be liable for any unpaid amount of the Grant;

(ii) the Recipient must not incur any further commitments or make any further

expenditure relating to the Project, which is to be paid from the Grant, unless

permitted in writing by the Department to do so;

(iii) the Department, at its absolute discretion, may by written notice to the Recipient,

demand that part or all of the Grant is due and payable, unless permitted in writing

by the Department to do so; and

(iv) if the Department makes a demand under clause 16.3(iii), the Grant or the part

thereof demanded is due and payable by the Recipient to the Department in

immediately available funds within 20 Business Days after the date of the written

notice.

16.4 Survival

The obligations under this clause 16 survives the expiration or termination of this Agreement.

17. ASSETS

(a) For Assets purchased with the Grant, the Recipient must follow ordinary and

commercially prudent procedures and arrangements for the purchase, installation,

maintenance and preservation of such Assets.

(b) The Recipient must ensure that all Assets purchased with the Grant must be available

for priority use for the Project.

(c) Each Asset purchased with the Grant must vest in the Recipient.

(d) Assets purchased with the Grant should be kept within Western Australia unless the

Department has first given the Recipient written approval to move any items outside

Western Australia.

(e) The Recipient must not within three years of the expiry of the Term sell, transfer,

dispose of, mortgage, charge or otherwise encumber Assets purchased with the Grant

without the prior consent of the Department.


(f) The Recipient is responsible for insurance, maintenance, and if required repair and

replacement of the Asset and any other costs and liabilities associated with the Asset.

18. RISK MANAGEMENT

(a) For the duration of this Agreement, the Recipient must develop, implement and update a

Risk Management Plan for the Project which includes the following features:

(i) clear identification and documentation of all key Project risks and categorisation of

those risks covering both likelihood of occurrence and potential consequence;

(ii) the proposed mitigation strategies and associated treatment action plans that the

Recipient determines necessary to eliminate the risks or, if this is not possible,

minimise the likelihood and consequences of those risks occurring; and

(iii) a process for regularly monitoring and updating the Risk Management Plan, and is

consistent with Item 4 of Schedule 1, relevant industry standards and best practice

for this type of Project and the types of risks it has.

(b) The Recipient acknowledges and agrees that the provision of the Risk Management

Plan pursuant to the requirements of this clause 18 and the Agreement, is provided to

the Department for information purposes only and does not constitute approval or

endorsement by the State or by the Department of the Risk Management Plan in any

manner or form arising out of this Agreement or in respect of the Project.

19. FREEDOM OF INFORMATION ACT 1992, FINANCIAL MANAGEMENT ACT 2006

AND AUDITOR GENERAL ACT 2006

(a) This Agreement and information regarding it is subject to the Freedom of Information Act

1992. The State may publicly disclose information in relation to this Agreement, including

the terms and the details of the Recipient.

(b) Despite any express or implied provision of this Agreement to the contrary, nothing in this

Agreement in any way alters, limits or affects the operation of the Auditor General Act

2006, the Financial Management Act 2006 or the Recipient's obligations (if any) in relation

to these Acts. To the extent permitted by law, the Recipient must allow the Auditor

General, or an authorised representative, to have access to and audit (or otherwise

review, examine or evaluate) the Recipient’s records and information concerning this

Agreement or the Project.

20. ETHICAL CLEARANCES

If necessary, the Recipient must ensure that the Project conducted under or in connection with

this Agreement obtains, and complies with, all appropriate ethical clearances from the relevant

committees or authorities.

21. REGULATION AND APPROVALS

The Recipient must comply with all Laws and has sole responsibility to obtain all required

Authorisations for the Project.

22. GST

22.1 Definitions

In this clause:

Additional Amount, Recipient and Supplier have the meanings given in clause 22.3.


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

Any terms used in this clause 22 that are defined in the GST Act have the same meanings as

in the GST Act.

22.2 Prices do not include GST

All prices or other amounts fixed or determined under, or referred to in this Agreement are

exclusive of GST, except where expressly provided to the contrary in a particular provision of

this Agreement.

22.3 Recipient must pay GST

Subject to clause 22.4, if GST is or becomes payable by a Party (Supplier) in relation to any

supply that it makes under, or in connection with, or resulting from this Agreement, the Parties

agree that, in addition to any consideration provided by a Party (Recipient) for that supply, the

Recipient must pay to the Supplier the amount of any GST for which the Supplier is liable in

relation to that supply (Additional Amount) at the earlier of:

(a) the same time as the relevant consideration or any part of it is provided; or

(b) if the Supplier is required under the GST Act to pay GST prior to receiving the relevant

consideration for the supply, within two Business Days of the Supplier’s due date for

payment of the GST liability as notified by the Supplier to the Recipient in writing.

22.4 Tax Invoice

The obligation to pay the Additional Amount only arises once the Supplier has issued a tax

invoice (and any adjustment note) to the Recipient in respect of the Additional Amount.

22.5 Reimbursements

If, under this Agreement, one Party is required to pay an amount to reimburse or compensate

the other Party for any cost or liability incurred by that Party, the amount to be reimbursed or

compensated excludes any GST component of that cost or liability for which that other Party is

entitled to claim an input tax credit.

22.6 Payments

Subject to the terms of this Agreement, the Department will pay the Grant to the Recipient in

accordance with the instalments set out in Item 4 of Schedule 1. The Department will make

such payments within 30 days of receipt of a valid tax invoice from the Recipient.

23. ACCESS TO LAND

If the Project is being undertaken on land (whether freehold or Crown land) that is not owned,

leased or managed by the Recipient, the Recipient must obtain before it enters or occupies

that land and keep in place whilst the Recipient is on that land the written consent of the

person owning or leasing that land to such entry or occupation by the Recipient. A copy of this

consent must be provided to the Department at the Execution Date.

24. NEGATION OF EMPLOYMENT, PARTNERSHIP AND AGENCY

(a) The Recipient must not represent itself, and must ensure that its employees,

contractors, sub-contractors or agents do not represent themselves, as being an

employee, partner or agent of the State or the Department or as otherwise able to bind

or represent the State or the Department


(b) The Recipient will not by virtue of this Agreement be or for any purpose be deemed to

be, an employee, partner, or agent of the State or the Department, or have any power or

authority to represent the State or the Department.

25. ASSIGNMENT

This Agreement is personal to the Recipient and may not be assigned by the Recipient

without the Department’s consent, which may be withheld in the Department’s absolute

discretion. The Department may at any time, in its absolute discretion, assign or transfer its

rights and obligations under this Agreement as it sees fit.

26. NOTICES

26.1 Notices

A notice, request, direction, demand, consent or other communication (in any case, “Notice”)

that may or must be given under or in connection with this Agreement, to be valid and

effective:

(a) must be in writing;

(b) may be given by an Authorised Officer of either Party; and

(c) must be:

(i) sent by prepaid ordinary post to, or left at the address of, an addressee at the

address set out in clause 26.2(b); or

(ii) sent by email to the email address of an addressee set out in clause 26.3.

26.2 Receipt of Notices

(a) A Notice takes effect from the time it is received, unless a later time is specified in the

Notice. For the purposes of this clause 26, a letter or email is taken to be received:

(i) in the case of a letter sent by post, on the sixth Business Day after posting; and

(ii) in the case of an email, on production of a printed copy of the sent email which

shows that the entire email, including all attachments, was sent to the email

address of an addressee set in clause 26.3 (provided that the sender does not

receive notification that the email was not successfully delivered).

(b) A Notice which is received after 5.00pm on a day is taken to be received on the next

Business Day after that day.

26.3 Address for Service

The Parties; addresses for service are as follows:

(a) The Department’s address for service:

Email: [email protected]

(b) The Recipient’s address for service:

Email: [insert Recipient email]

mailto:[email protected]


27. WAIVER

(a) No right under this Agreement shall be deemed to be waived except by notice in writing

signed by each Party.

(b) A waiver by either Party pursuant to clause 27(a) will not prejudice that Party’s rights in

respect of any subsequent breach of this Agreement by the other Party.

(c) Subject to clause 27(a), any failure by either Party to enforce any clause of this

Agreement, or any forbearance, delay or indulgence granted by one Party to the other

Party will not be construed as a waiver of rights under this Agreement.

28. DEPARTMENT’S RIGHTS

The Department reserves the right to administer the Fund in such a manner as it sees fit and

may in its absolute discretion:

(a) change the scope, structure, purpose, processes, procedures, terms of participation in

and timing of the Fund;

(b) request additional information or clarification from the Recipient or conduct due

diligence;

(c) take into account any information from its own or other sources (including Government

agencies or advisors);

(d) accept or reject any invoice, having regard to any other matter or thing which the

Department considers relevant, including limitations on the funds available to the Fund;

(e) exercise a right or discretion or perform any act or omit to perform any act at its absolute

discretion;

(f) terminate the participation of the Recipient in the Fund; or

(g) terminate or not proceed with the Fund in the manner outlined at the time of Application,

or at all.

29. REMEDIES

The rights, powers and remedies in this Agreement are in addition to, and not exclusive of, the

rights, powers and remedies existing at law or in equity.

30. ENTIRE AGREEMENT

This Agreement and its Schedules constitutes the full and complete understanding between

the Parties from this Agreement and the remaining terms or parts of the terms of this

Agreement continue in force.

31. SEVERABILITY

A term or part of a term of this Agreement that is illegal or unenforceable may be severed from

this Agreement and the remaining terms or parts of the terms of this Agreement continue in

force.

32. COSTS

Each Party agrees to bear its own legal costs and expenses in connection with the

preparation, execution and completion of this Agreement and of other related documentation.


33. GOVERNING LAW AND JURISDICTION

This Agreement is governed by the law in force in Western Australia. Each Party irrevocably

submits unconditionally to the non-exclusive jurisdiction of the Courts of Western Australia and

of all Courts competent to hear appeals there from in relation to any legal action, suit or

proceeding arising out of or with respect to this Agreement.

34. VARIATION

Any modification, amendment or other variation to this Agreement must be made in writing,

and must, unless the Department in its absolute discretion directs in writing otherwise, be duly

executed by both Parties.

35. FORCE MAJEURE

(a) If any Party:

(i) is prevented from or delayed in performing an obligation under this Agreement by

a Force Majeure Event; and

(ii) gives the other Party written notice of the Force Majeure Event, within 5 days of

becoming aware of the Force Majeure Event,

then the obligations affected by the Force Majeure are suspended during the period the

Force Majeure Event continues, subject to this clause 35.

(b) A notice under clause 35(a)(ii) must describe the Force Majeure Event and its expected

impact on the Party’s obligations under this Agreement.

(c) A party must take action to mitigate the effects of the Force Majeure Event and keep the

other Party regularly informed by notice of the continuation of the Force Majeure Event

and the impact it is having on this Agreement.

(d) If the Force Majeure Event continues for a period of six (6) months or longer then, either

Party can lawfully terminate this Agreement by giving the other party five (5) days written

notice and the parties will be relieved of any further obligations under this Agreement

without any further obligations accruing to either Party.

36. ALTERNATIVE DISPUTE RESOLUTION

(a) Subject to this clause 36, the Parties agree not to commence any legal proceedings in

respect of any dispute (Dispute) arising under this Agreement unless it has complied

with this clause 36.

(b) The Party claiming that a Dispute has arisen must notify the other Party in writing

(“Dispute Notice”) stating the nature of the Dispute and the contractual basis of the

claim.

(c) Each Party must appoint an appropriately informed representative, who shall be named

in the Dispute Notice, who will use their best endeavours to resolve the Dispute with the

representative of the other Party by direct negotiation

(d) Either Party may escalate the Dispute as follows:

(i) If the representatives pursuant to clause 36(c) have not been able to resolve the

Dispute within 7 Business Days after the service of the Dispute Notice, either Party

may escalate the Dispute to their respective Chief Executive Officer or their

respective nominees; and


(ii) if the Parties cannot resolve the Dispute in accordance with 36(d)(i) within a further

15 Business Days or such extended time as agreed by the Parties, either Party

may refer the Dispute to mediation or some other form of alternative dispute

resolution procedure.

(e) if under clause 36(d)(ii), there is 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.

(f) For the avoidance of doubt, this clause 36 does not apply to any matter in respect of the

Grant funds and including:

(i) where action is taken by the Department under or purportedly under clause 5

(h), clause 9, clause 10, clause 16 and clause 17;

(ii) Where action is taken by the Department or the State to investigate a breach or a

suspected breach of a Law by the Recipient.

(g) Each Party must bear its own costs of resolving a Dispute under this clause 36.

37. Confidentiality

(a) Subject to clause 37(b), the Minister agrees to keep confidential, information reasonably

and expressly identified by the Recipient as confidential (Confidential Information).

(b) The Minister and the State (including its officers and employees) may disclose

Confidential Information to the extent that disclosure is:

(i) contemplated in this Agreement or necessary for the performance of obligations,

or exercise of rights, under this Agreement;

(ii) made to advisors and consultants of State or the Minister, subject to those

advisors and consultants being bound to an obligation of confidence with respect

to that information;

(iii) of information already in the public domain other than because of a breach of this

Agreement;

(iv) required by Law;

(v) consented to by the Recipient, such consent not to be unreasonably withheld;

(vi) made to a court in the course of proceedings;

(vii) to satisfy the requirements of parliamentary accountability or any other reporting or

recognised public obligations of any government agency;

(viii) to the Western Australian Auditor-General for the purpose of satisfying statutory

duties;

(ix) made by any Minister, Department or public body in the performance of its

functions or the discharge of its duties, including in responding to any questions,

making a public statement or releasing information in relation to a matter of public

interest; and


(x) in accordance with the Freedom of Information Act 1992 (WA), the Ombudsman

Act 1976 (Cth) or the Parliamentary Commissioner Act 1971 (WA).

38. EXECUTION

This Agreement may be executed in counterparts by the respective Parties, each of which

when so executed shall be deemed to be an original and of all of which taken together shall

constitute one and the same Agreement, provided that this Agreement shall be of no force

and effect until the counterparts are exchanged.


CAPITAL WORKS PROJECT SCHEDULE 1 – ITEMS

ITEM 1 – GRANT

The total amount of the Grant is [insert awarded amount] (excludes GST).

ITEM 2 – PROJECT

The purpose of the Grant is to support the delivery of the [insert Name of Project] (the Project)

as detailed in the Project Plan attached at Schedule 2, and the Application.

The key objective of the Project is to [insert description of Project from Application].

The key components of the Project are [insert key components of Project from Application].

Additional requirements

In addition to the Project details specified in Schedule 2, the Recipient is required to:

(a) Acknowledge the Western Australian Government’s support in any publicity and onsite

signage pertaining to the Project;

(b) Provide the Government and Public Knowledge Sharing Reports outlined in Item 6 of

the Schedule; and

(c) Submit the Reports in accordance with Item 6.

ITEM 3 – TERM

The Term is from the Execution Date for a period of 30 months but no later than 30 June

2024.

ITEM 4 – PAYMENT SCHEDULE

Subject to the other provisions of this Agreement, the Grant is payable to the Recipient for the

Project in the following manner.

Milestone payments as set out below are subject to the Recipient:

(a) Meeting the relevant Milestone set out in the Milestone Payment Schedule Table and

providing evidence satisfactory to the Department that such Milestone has been met;

(b) Providing a valid tax invoice for that part of the Grant the Recipient claims to be entitled

to; and

(c) If requested, providing a statement of income and expenditure for the Project to the date

of the progressive payment claim, signed by the Recipient’s Chief Financial Officer or

equivalent position. The statement should include details of Project expenditure

compared to budget.

Milestone Payment Schedule Table

[insert Milestones of Project from Application]

It is a pre-condition for payment of each Milestone amount that the Recipient must provide an

updated and revised Risk Management Plan in accordance with Clause 18.

Milestone

Number

Milestone Forecast

Submission

Date

Milestone

amount

(GST exc)

1

2


3

4

5

6

7 .

TOTAL

Payment of the Grant instalments for the Project will be by electronic funds transfer.

The Recipient’s bank details are as follows:

Name of Bank: TBA

BSB: TBA

Account Number: TBA

Account Name: TBA

ITEM 5 – PROJECT PLAN

The Project Plan and its constituent documents are specified in Schedule 2 (Project Plan). It

is a pre-condition of Project commencement that the Recipient must provide the Department

with the Project Plan at the Execution Date.

ITEM 6 – REPORTING REQUIREMENTS

In accordance with this Agreement, the Reports are to be provided electronically and to the

satisfaction of the Department.

Government Commissioning Knowledge Sharing Report

The Government Commissioning Knowledge Sharing Report must be submitted.

Note: the details and timeframe for submission of this Report will be specified in the final FAA

in accordance with the Department’s requirements.

Public Commissioning Knowledge Sharing Report

The Public Commissioning Knowledge Sharing Report must be submitted.



Note: this Report will be published on appropriate website(s) and should provide an overview

of the Project as well as its key technical parameters in accordance with the Department’s

requirements.

Acquittal Report

The Recipient must provide the Department with an Acquittal Report within 30 days of the

completion of the Project or within 30 days of the termination of this Agreement (whichever

first occurs),

The Acquittal Report shall include the following:

(a) An overall summary of all activities undertaken, outputs delivered, Milestones and

outcomes achieved during the Term;


(b) Description of all income, and expenditure of the Grant, in relation to the Project over the

Term, including a funding acquittal statement detailing the items against which the Grant

has been expended and showing any unspent balance of the Grant.

(c) The Acquittal Report must be signed and certified by the Recipient’s Chief Financial

Officer or equivalent accountable officer of the Recipient as being true and correct);

The Department will review the financial and non-financial performance set out in the Acquittal

Report. If, in the reasonable opinion of the Department, the Acquittal Report is deemed

inadequate, the Recipient must promptly provide such further information as the Department

may require to the reasonable satisfaction of the Department. The Department may query the

particulars of the Acquittal Report and seek further information.

Note: additional Acquittal Report requirements in accordance with the Department’s policies

will be specified in the final FAA

Government Operational Project Knowledge Sharing Report

Six months after commissioning, a Government Operational Project Knowledge Sharing

Report must be submitted. This Report provides a high-level overview of the Project, its

components and enabling technologies as well as its performance. It should outline any

operation and maintenance issues during the first year’s operation. The Government

Operational Project Knowledge Sharing Report will include information agreed by the

Department and the Recipient.



Public Operational Project Knowledge Sharing Report

The Public Operational Project Knowledge Sharing Report must be submitted and is a public

version of the Government Operational Project Knowledge Sharing Report. This Report will be

published on appropriate website(s) and should provide an overview of the Project and its

operational parameters. It should include relevant information of interest to the Australian

hydrogen industry, Government agencies and researchers and will include information agreed

by the Department and the Recipient.




of the Project as well as its key technical parameters in accordance with the Department’s

requirements.


CAPITAL WORKS PROJECT SCHEDULE 2 – PROJECT PLAN

The Project Plan consists of the following documents:

(a) A Business Case constituting project description and requirements inclusive of

Milestone activity schedule by timeframe;

(b) Forecast Project budget, inclusive of Engineering, Procurement and Construction

(EPC) vendor costings and sub-contractor / contractor contributions;

(c) Risk Management Plan

(d) Community Engagement Plan

(e) Local Content Plan

(f) Certificate of Currency for Insurances


FEASIBILITY STUDY SCHEDULE 1 – ITEMS

ITEM 1 – GRANT

The total amount of the Grant is [insert awarded amount] (excludes GST).

ITEM 2 – PROJECT

The purpose of the Grant is to assess the feasibility of [insert Name of Project] (the Project) as

detailed in the Project Plan attached at Schedule 2, and the Application.

The key objective of the Project is to [insert description of Project from Application].

The key components of the Project are [insert key components of Project from Application].

Additional requirements

In addition to the Project details specified in Schedule 2, the Recipient is required to:

(a) Acknowledge the Western Australian Government’s support in any publicity and onsite

signage pertaining to the Project;

(b) Provide the Public Knowledge Sharing Report outlined in Item 6 of the Schedule; and

(c) Submit the Reports in accordance with Item 6.

ITEM 3 – TERM

The Term is from the Execution Date for a period of 30 months but no later than 30 June

2024.

ITEM 4 – PAYMENT SCHEDULE

Subject to the other provisions of this Agreement, the Grant is payable to the Recipient for the

Project in the following manner.

Milestone payments as set out below are subject to the Recipient:

(a) Meeting the relevant Milestone set out in the Milestone Payment Schedule Table and

providing evidence satisfactory to the Department that such Milestone has been met;

(b) Providing a valid tax invoice for that part of the Grant the Recipient claims to be entitled

to; and

(c) If requested, providing a statement of income and expenditure for the Project to the date

of the progressive payment claim, signed by the Recipient’s Chief Financial Officer or

equivalent position. The statement should include details of Project expenditure

compared to budget.

Milestone Payment Schedule Table

[insert Milestones of Project from Application]

It is a pre-condition for payment of each Milestone amount that the Recipient must provide an

updated and revised Risk Management Plan in accordance with clause 18.

Milestone

Number

Milestone Forecast

Submission

Date

Milestone

amount

(GST exc)

1

2

3


4

5

6

7 .

TOTAL

Payment of the Grant instalments for the Project will be by electronic funds transfer.

The Recipient’s bank details are as follows:

Name of Bank: TBA

BSB: TBA

Account Number: TBA

Account Name: TBA

ITEM 5 – PROJECT PLAN

The Project Plan and its constituent documents are specified in Schedule 2 (Project Plan). It

is a pre-condition of the Project commencement that the Recipient must provide the

Department with the Project Plan at the Execution Date

ITEM 6 – REPORTING REQUIREMENTS

In accordance with this Agreement, all reporting is to be provided electronically and to the

satisfaction of the Department.

Public Knowledge Sharing Report

The Public Knowledge Sharing Report must be submitted.




of the Project as well as its key Implementation Plan parameters and other matters in

accordance with the Department’s requirements.

Acquittal Report

The Recipient must provide the Department with an Acquittal Report within 30 days of the

completion of the Project or within 30 days of the termination of this Agreement (whichever

first occurs),

The Acquittal Report shall include the following:

(d) An overall summary of all activities undertaken, outputs delivered, Milestones and

outcomes achieved during the Term;

(e) Description of all income, and expenditure of the Grant, in relation to the Project over the

Term, including a funding acquittal statement detailing the items against which the Grant

has been expended and showing any unspent balance of the Grant.

(f) The Acquittal Report must be signed and certified by the Recipient’s Chief Financial

Officer or equivalent accountable officer of the Recipient as being true and correct);


The Department will review the financial and non-financial performance set out in the Acquittal Report. If, in the reasonable opinion of the Department, the Acquittal Report is deemed inadequate, the Recipient must promptly provide such further information as the Department may require to the reasonable satisfaction of the Department. The Department may query the particulars of the Acquittal Report and seek further information.

Note: additional Acquittal Report requirements in accordance with the Department’s policies

will be specified in the final FAA


FEASIBILITY STUDY SCHEDULE 2 – PROJECT PLAN

The Project Plan consists of the following documents:

(a) An Implementation Plan for the Project including:

(i) project description, Milestones, timeframes and deliverables; and

(ii) governance structure for delivery.

Note: the details of the Implementation Plan will be specified in the final FAA in accordance

with the Department’s requirements.

(b) Forecast Project budget, inclusive of Engineering, Procurement and Construction

(EPC) vendor costings and sub-contractor / contractor contributions;

(c) Risk Management Plan

(d) Community Engagement Plan

(e) Certificate of Currency for Insurances


Executed by Richard Sellers, Acting Director General

of the Department of State Development, Jobs and Trade,

as delegate of the Minister for State Development, Jobs and Trade

______________________________________

Mr Richard Sellers

Acting Director General, Department of Jobs, Tourism, Science and Innovation

in the presence of:

______________________________________

Signature of Witness Date / / 2020

______________________________________

Print Name of Witness

SIGNED for and on behalf of [insert name of Recipient]

by

_______________________________________

Signature

_______________________________________

Print Name and Position

in the presence of:

_______________________________________

Signature of Witness Date / / 2020


_______________________________________

Name of Witness

Documents

AGREEMENT BETWEEN MINISTER FOR STATE DEVELOPMENT, …