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Research program
Applied research – Guidelines for applicants
Tender No. SPD/419803/2014
Closing Date: 5:00pm Friday 7 November 2014
Disclaimer
This publication may contain work health and safety and workers compensation information. It may include some of your obligations under the various legislations that WorkCover NSW administers. To ensure you comply with your legal obligations you must refer to the appropriate legislation.
Information on the latest laws can be checked by visiting the NSW legislation website legislation.nsw.gov.au
This publication does not represent a comprehensive statement of the law as it applies to particular problems or to individuals or as a substitute for legal advice. You should seek independent legal advice if you need assistance on the application of the law to your situation.
© WorkCover NSW
Contact officer
Contact name: Jennifer Balshaw
Contact postal address: Locked bag 2906 Lisarow NSW 2252
Contact email address: [email protected]
Any information given to a tenderer to clarify any aspect of this funding program will also be given to all other tenderers, if WorkCover believes it would be unfair not to do so.
Contents
1. Introduction 2
Applied research 2
Eligibility 2
Standard conditions 2
Specific conditions 4
2. Developing a research proposal 5
Proposal format 5
Required content 5
Research concept 5
Methodology 5
Applicability of outcomes 5
Project planning and deliverables 5
Project budget 6
3. Submitting an application 7
Required documentation 7
Application lodgement 7
Electronic submissions 7
4. Assessment of applications 8
Overview of process 8
Initial assessment 8
Research assessment panel 8
Detailed assessment 9
Notification of assessment outcomes 9
Appendix A 10
WorkCover NSW Applied research – Application form 10
Appendix B 16
WorkCover NSW Applied research funding – Application checklist 16
Appendix C 17
Standard funding agreement clauses 17
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1. IntroductionThese guidelines are part of a suite of documents developed by WorkCover NSW to support the operation of its research program. The aim of these guidelines is to assist eligible organisations to apply for applied research funding.
These guidelines should be read in conjunction with the WorkCover Research Program Framework document, which provides further information about the research program and its categories. The framework is available to download from the WorkCover website.
Applied researchUnder the WorkCover Research Program, applied research:
• is original investigation undertaken in order to acquire new knowledge with a specific application in view.
• determines possible uses for the findings of existing research, or new methods, or ways of achieving some specific and predetermined objectives.
Funding for applied research projects is generally provided in two rounds each financial year. WorkCover may nominate priority focus areas for research, although this will not preclude the funding of innovative projects that may not sit within the pre-identified priorities. WorkCover has not nominated priority focus areas for this current funding round.
The proposal must clearly define the issue regarding prevention, treatment of workplace illness and injury, and/or work based rehabilitation that will be addressed through the research project.
The number and focus of research projects funded under this initiative will vary from round to round, and individual project funding is capped at up to $150,000 (excluding GST).
EligibilityApplications for applied research funding can be submitted by non-government organisations (NGOs) from the academic, health, research, and education sectors, as well as non-profit industry groups, who can demonstrate evidence of a collaborative partnership with an organisation that has a recognised research profile (such as a research centre or university).
Standard conditionsThe following standard conditions apply to applied research funding.
ABN
1. Applicants must be registered for GST and provide their Australian Business Number (ABN) when completing the application form. WorkCover will not enter into a contract with an applicant who does not have an ABN and is not registered for GST.
Commencement and duration
2. Applicants must disclose any other grants or funding assistance being received or sought for their project, and this advice will be considered within the assessment and evaluation process.
3. Applied research projects must commence within two months from when successful applicants have received institutional ethics approval and have a duration limit of two years.
Requirement to contract
4. Successful applicants will be required to sign a contract with WorkCover for delivery of services. See Appendix C for standard funding agreement clauses that may be included.
5. No legal or other obligation shall arise between applicants and WorkCover, or the NSW Government, unless and until a contract has been executed.
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 3
6. Other conditions may be included in contractual arrangements, including but not limited to copyright of products, options for varying, suspending or terminating the project, reporting and communication, confidentiality, indemnity provisions and compliance with applicable laws.
Intellectual property
7. A fair and equitable agreement as to the rights of respective parties to the intellectual property created as a result of the applied research funded project, will be negotiated with successful applicants on a case by case basis. However, it is WorkCover’s intent that successful applicants will have the full right to publish any results obtained by them, subject to established safeguards for the protection of privacy or confidentiality of personal data.
Conflict of interest
8. Applicants must comply with the requirements of the SRWS Statement of Business Ethics, and must disclose any conflicts of interests in their proposal.
9. If an applicant, or any of its officers, employees, agents or sub-contractors is found to have:
a. offered any inducement or reward to any public servant or employee, agent or subcontractor of WorkCover, or the NSW Government, in connection with the submitted proposal
b. committed corrupt conduct in the meaning of the Independent Commission Against Corruption Act 1988
c. a record or alleged record of unethical behaviour; or not complied with the requirements of the SRWS Statement of Business Ethics may result in the proposal not receiving further consideration.
10. WorkCover may, at its discretion, invite a relevant applicant to provide written comments within a specified time before they are excluded on the basis of condition 9.
11. If WorkCover becomes aware of improper conflict of interests by a successful applicant after a contract has been executed, then WorkCover reserves the right to terminate the general conditions of contract that has been made under it.
Procurement policy framework
12. In submitting an application, the applicant signifies agreement to comply with the goods and services procurement policy framework. Failure to comply with the framework may be taken into account by WorkCover when considering proposals or any subsequent quotation, and may result in the applicant being rejected.
Variance to process
13. WorkCover and the NSW Government reserve the right to cancel, vary, supplement, replace or amend the process set out in this document, any of its terms and any procedures or assessment criteria, at any time, with notice in writing. To the extent permitted by law, applicants will have no claim against WorkCover or the NSW Government with respect to the exercise or failure to exercise its rights.
Confidentiality of information
14. All information provided will be treated as confidential to the extent permitted by law.
Costs incurred
15. All costs and expenses incurred by applicants that is in any way associated with the development, preparation and submission of proposals will be borne entirely and exclusively by applicants.
Provision of funds
16. Funds will be provided to successful applicants according to a predetermined and agreed payment schedule and upon acceptance of a progress report and tax invoice.
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Specific conditions
Management
Funding recipients will be directly responsible to the WorkCover Project Manager (WorkCover representative) in the Strategy and Performance Division.
The WorkCover representative will coordinate review of draft documents and provision of feedback to funding recipients/researchers. The funding recipient/researcher will subsequently address any concerns or revisions raised under this process.
The proposed researcher must be prepared to remain with the project until it is completed. A signed statement to this effect is required. WorkCover reserves the right to cancel an agreement where a funding recipient is unable to comply with this condition.
Data
In the normal conduct of its core business activities WorkCover gathers, generates and stores large amounts of data and information.
WorkCover is committed to the protection of the organisation’s data and information. Data may be released externally when it supports WorkCover’s purpose to improve the economic growth, productivity and wellbeing of the NSW economy by leading and managing systems to:
• prevent, mitigate, and insure for, workplace injury risks
• provide recovery and support services when injuries or illnesses covered by workers compensation insurance occur.
Release of WorkCover data is subject to strict legislative requirements and corporate governance procedures.
Confidentiality
The funding recipients/researcher shall not release the research findings, in whole or part, without the written consent of WorkCover, and shall be expected to enter into a confidentiality agreement with WorkCover.
Any publicity and releases to the media concerning the research findings will be at the sole discretion of WorkCover. The funding recipients/researcher must not release information to the media on any matters relating to the project.
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 5
2. Developing a research proposalApplicants should read this section carefully and ensure their proposal is provided in the format requested and includes the information outlined.
Proposal formatApplied research proposals will only be accepted if they are submitted electronically in the following formats:
• Word 2010 compatible document
• PDF document
Required contentThe content of proposals must incorporate information under the following headings:
Research concept
The name of the research project must be provided along with a brief description of what the project will do. Proposals will need to clearly define the issue within a particular industry regarding prevention, and/or treatment/rehabilitation of workplace illness and injury.
Please include any multicultural considerations that may form part of your proposal and how these may be addressed.
The rationale for the project should be outlined – why the research is required or what instigated the development of the proposal.
Methodology
The objectives of the research project and methodology to be used should be outlined. The rationale for the choice of methodology should be explained. An outline of any existing research should be included as well as an explanation of any unusual or specific issues that may impact the undertaking of the project.
A clear outline of the timeframe for completion of the research project must be included. Keep in mind that applied research projects have a duration limit of two years, and must commence within two months from when successful applicants receive institutional ethics approval.
Applicability of outcomes
Advice regarding how the project and its outcomes will impact on industry, workers and the community (where relevant), and how research outcomes could be applied after completion of the research should be included.
Provide evidence of stakeholder support for the research and its outcomes.
Project planning and deliverables
A project plan must be provided including:
• planned activities against timeframes
• evaluation measures
• reporting.
The deliverables of the research project must be listed. WorkCover requires a final research report on the research findings, their applicability in the field of workplace health and safety, injury management, or workers compensation, and how the outcomes will be disseminated.
Additional deliverables may include other materials or resources – eg literature review, guidance materials, conference presentations. Academic partners will be required to prepare an article on the research for submission to a peer reviewed journal.
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Project budget
Information about the budget for the research project must be provided, including:
• the total funds required to undertake the project (excluding GST)
• a detailed and justified breakdown of project budget
• advice on additional funding for the project – eg from other project partners, or in-kind resources.
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 7
3. Submitting an application
Required documentationApplicants will need to complete and sign the application form at Appendix A. All information must be provided for the application to be considered.
Application forms must be accompanied by:
• a research proposal, containing the information outlined on page 5–6 of these guidelines
• a brief organisation profile
• a profile of the applicant’s research partner, if applicable
• a CV of the principal researcher for the project that addresses:
relevant publications
research funding received over the past five years
research projects managed and completed
research supervision conducted.
• brief CVs of key personnel who will be working on the project.
Application lodgementApplications (including all supporting information, if any) must be fully received by the closing date and time. Applicants must complete all application documents and must not amend any of the questions provided. Responses and other information provided in the application must be in writing and in English.
The application must be submitted electronically to the tender box for this funding program via the NSW Office of Finance and Services tenders website (login in as a system user, locate the web page for this funding program, and follow the instructions). The lodgement can only be made by a registered system user of the NSW Government eTendering system.
Applicants should notify the contact officer in writing on or before the closing date and time if they find any discrepancy, error or omission.
Electronic submissionsA tender submitted electronically will be treated in accordance with the Electronic Transactions Act 2000 (NSW), and given no lesser level of confidentiality, probity and attention than tenders lodged by other means.
An applicant, by electronically lodging an application, is taken to have accepted conditions shown in the conditions and rules on the NSW Office of Finance and Services tenders website.
Electronically submitted applications may be made corrupt or incomplete, for example by computer viruses. WorkCover may decline to consider for acceptance an application that cannot be effectively evaluated because it is incomplete or corrupt. Applicants must note that:
a. To reduce the likelihood of viruses, an applicant must not include any macros, applets, or executable codes or files in an application.
b. An applicant should ensure that electronically submitted files are free from viruses by checking the files with an up to date virus-checking program before submission.
WorkCover will not be responsible in any way for any loss, damage or corruption of electronically submitted applications.
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4. Assessment of applications
Overview of process
Timeframe
Initial assessment by Planning, Performance and Research Unit (PPRU) 1 week
Research proposals are assessed against:
• eligibility of applicant for funding under this initiative
• completeness of application.
Detailed assessment by research assessment panel (RAP) 4 weeks
Research proposals are assessed against the selection criteria.
Shortlisted applicants attend interview with the research assessment panel.
RAP funding recommendations finalised in assessment report.
Internal submission to executive research management committee (ERMC) 1 week
PPRU prepares brief outlining assessment outcomes and recommendations for ERMC for endorsement.
Final approval to project commencement (including standard internal processes for briefing, procurement and contracting)
4–6 weeks
Endorsed funding recommendations are progressed to the CEO SRWS for approval.
The applicant will be advised in writing at this point that their application has been successful.
A funding agreement will be sent with formal notification to successful applicants.
PPRU liaison with legal and procurement services, contract signing by all parties.
Initial assessmentThe initial assessment is undertaken by the PPRU in WorkCover.
The initial assessment checks for:
• eligibility – is the applicant eligible to submit an application under the applied research category of the WorkCover Research Program?
• completeness – has the applicant provided all the documentation electronically that constitutes a complete application, in the correct format by the due date?
If the initial assessment identifies that an applicant is not eligible to apply for funding under the applied research category, the application will be automatically excluded from the assessment process.
If the initial assessment identifies that an application is missing required information, WorkCover may, at its discretion, elect to contact the applicant to request further advice. Alternatively, WorkCover may elect to exclude the application from the assessment process. If an application has been received after the closing date it will not be considered unless extenuating circumstances can be proven.
Advice regarding the exclusion of an application, and the rationale for the exclusion, will be communicated to the applicant at the conclusion of the initial assessment, by email in the first instance and then by formal letter.
Research assessment panelFollowing the initial assessment, a research assessment panel (RAP) will be convened by WorkCover to undertake a detailed assessment of accepted applied research applications. The RAP is structured to provide objective judgment in the assessment of applications and will include subject matter experts from across WorkCover and industry (where relevant), and academic research expertise.
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 9
Detailed assessmentResearch proposals will be assessed against the following criteria:
Criteria
Research concept • The problem or opportunity to be addressed by the project is clearly identified and described.
• Research questions or hypotheses are precisely stated.
• Evidence for the need to undertake this research is provided.
Methodology • The proposed methodology is scientifically sound.
• The proposed methodology is managerially sound and potential pitfalls and limitations are clearly identified, along with contingency plans.
• The proposed sequence of work is appropriate and the proposed approach reflects sound knowledge of current theory and practice and awareness of previous or ongoing related research.
Applicability of outcomes • The practical application and expected impact of the research outcomes is effectively explained.
• The project is likely to further advance research and knowledge in relation to workplace health and safety, injury management, or workers compensation.
Research capacity • Appropriately qualified and experienced researchers will lead the research.
• There are designated project personnel qualified to carry out the project successfully.
• There are sufficient numbers of personnel and other resources associated with the project to achieve the stated objectives and the anticipated outcomes, within the stipulated timeframes.
Stakeholder support • There is evidence of industry stakeholder support for the research.
• There is evidence of academic stakeholder support for the research.
Project planning • The objectives and plan of operation appear to be sound and appropriate, relative to the proposed project and the anticipated impact.
• The timetable appears to be readily achievable and will support the project to be finalised within a two year timeframe.
• Evaluation plans facilitate the measurement of project progress and outcomes.
Budget • The budget request is within the range of available funding.
• The total budget is adequate to carry out project activities and is cost effective.
• The budget request is justifiable and costs are reasonable and necessary.
• For a joint project proposal, the shared budget is explained clearly and in sufficient detail.
The RAP will prepare a shortlist of applicants based on their assessment scores. Short listed applicants will be invited to attend an interview with the RAP in order to clarify any issues and inform the RAP’s final recommendations. Following the interview process, the RAP makes funding recommendations in an assessment report to the Executive Research Management Committee (ERMC). The ERMC is comprised of the WorkCover Executive. Their role is to review the appropriateness of and rationale for recommendations and provide endorsement. Once recommendations have been endorsed by the ERMC and approved by the CEO SRWS, applicants will be notified.
Notification of assessment outcomesThe outcomes of the assessment process will be provided to applicants by email, in the first instance.
For successful applicants, a formal letter of offer will follow as soon as practicable, which will be accompanied by a contract for services to undertake the project.
Unsuccessful applicants will be notified in writing, with a brief outline of the reasons behind the decision.
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Appendix A
WorkCover NSW Applied research – Application form
APPLICANT INFORMATION
Organisation name
ABN
- - -
Are you registered for GST? Yes No
Current addressUnit number/Street number/Property number (include Lot or DP number if applicable)
Street name
Suburb State Postcode
Name of Chief Executive Officer or DirectorTitle Family/Surname
Given name
Daytime contact number Mobile number
Name of organisation representative, for the purposes of this proposalTitle Family/Surname
Given name
Daytime contact number Mobile number
Will your organisation be conducting the research for this project?
Yes
No (please provide details under research partner section)
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 11
Name of your organisation’s principal researcher, who will be responsible for the day-to-day conduct and administration of the researcherTitle Family/Surname
Given name
Daytime contact number Mobile number
Other key personnel from your organisation who will be involved in the project
Name Role Time commitment
Is your organisation receiving any other funding assistance for the proposed research project?
Yes (please provide details below) No
���������������������������������������������������������������������������������������������������������������������������������������������
RESEARCH PARTNER INFORMATION
Only complete if applicable – eg your organisation is not a recognised research facility and will not be conducting the researchResearch partner’s organisation name
ABN Office phone number
- - -
Current addressUnit number/Street number/Property number (include Lot or DP number if applicable)
Street name
Suburb State Postcode
12 WORKCOVER NSW
Name of your principal researcher, who will be responsible for the day-to-day conduct and administration of the researchTitle Family/Surname
Given name
Daytime contact number Mobile number
Other key personnel from your research partner’s organisation who will be involved in the project
Name Role Time commitment
RESEARCH PROJECT TITLE
Name of your research proposal or project
Relevance to WorkCover (please tick):
Workplace health and safety Injury management Workers compensation Return to work
CONFLICT OF INTEREST
I declare that (please tick):
Submission of this proposal does not present a conflict of interest.
Submission of this proposal may present a conflict of interest, and I have attached details on a separate sheet.
RESEARCH CONCEPT
The rationale for the project should be outlined – why the research is required or what instigated the development of the proposal. Clearly state the research questions to be addressed.
Please include any multicultural considerations that may form part of your proposal and how these may be addressed.
(insert pages as required)
RESEARCH METHODOLOGY
Explain how the research will be undertaken. Include risk mitigation strategies.
(insert pages as required)
APPLICABILITY OF OUTCOMES
What are the expected outcomes from the research and how will they be applied? Provide evidence of stakeholder support for the research and its outcomes.
(insert pages as required)
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 13
PROJECT PLAN
Detail how the research will be achieved within the timeframe. Include key activities and how project progress and outcomes will be measured.
(insert pages as required)
• Timetable of activities
• Evaluation strategies
• Deliverables
PROJECT BUDGET
1. Provide evidence of organisational infrastructure support, and details of funds or other support which will be supplied by any other organisation for this project.
2. Has funding been requested from another source for this research project? If yes, please provide details.
3. Total funds being sought. Note: The following is provided as a SAMPLE BUDGET FORMAT. You will need to include all categories of costs proposed in your project.
Items Costs (Ex GST)
1. Salary for officer(s) (include justification of salaries for each person to be employed – eg a description of the salary range for each position as specified in the relevant award or agreement and length of time of employment and any known salary award increases that will be made during the life of the project)
2. Salary for researchers, consultants, professional services (include justification of salaries for each person – eg Description of salary range for each position, including number of hours, hourly rate of pay and length of time of employment)
3. Travel
4. Administration consumables (stationery, postage, printing etc)
5. Audit costs
6. Evaluation (where an evaluation is to be conducted by someone other than the funding recipient)
Total budget excluding GST (total funds requested) $
4. You will need to provide an indicative schedule of progress reports and stage payments using the following template. A finalised schedule forms part of each funding agreement.
SAMPLE
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Schedule of progress reports and stage paymentsApplicants are requested to consider the following terms prior to completing the schedule of progress reports and stage payments:
• An individual payment stage must not comprise more than 30 per cent of the total project funding. Applicants are reminded to make allowance in the final stage payment for WorkCover to withhold 15 per cent of monies until all of the researcher’s obligations under the funding agreement are fulfilled.
• The stage payments should not be excessively weighted at the front of the research project. As much as possible, the proportion of the research completed at any point should be consistent with the proportion of the total funding paid. Excessive up-front costs will have to be justified in writing.
• Please ensure a minimum of four weeks between ‘progress report due date’ and ‘next stage payment due date’ at each stage to allow time for checking progress and approving the next payment.
• The time between progress reports will not be greater than nine months.
• WorkCover requires expenditure reports with each project deliverable.
• All progress payments will be contingent on satisfactory progress reports and provision of a tax invoice. The payment for stage 1 is aligned to execution of the research funding agreement and receipt of a tax invoice.
Stage number
Stage commencement date
Stage payment amount
Description of stage
Work to be completed including key performance indicators (KPIs)
Stage progress report due date
Approx % of project completed at this stage
Next stage payment due date
1 10% Execution of funding agreement
2
3
4
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 15
REQUIRED ATTACHMENTS
Attached with this completed and signed application form are the following documents, that form part of the overall application (please tick and ensure these documents are attached):
Attachment A
A brief profile of your organisation, its key features, and previous experience in similar projects. Real or perceived conflicts of interest should be identified, together with a description of how these will be managed – eg do your organisation, researchers and any other consultants involved in the research provide services in the workers compensation system?
Attachment B
A CV of the principal researcher that addresses:
• relevant publications
• research funding received over the past five years
• research projects managed and completed
• research supervision conducted.
Attachment C
Brief CVs of key personnel that will be working on the project.
Attachment D
Evidence of your organisation’s current professional indemnity and Workers Compensation Insurance including amounts insured.
By signing this application form on behalf of my organisation, I am signifying the agreement and ability of my organisation to comply with the conditions for applied research funding, as outlined within the WorkCover Applied research – guidelines for applicants (catalogue no. WC01535).
Position title of applicant’s representative
Applicant’s representative signature Date (DD/MM/YYYY)
/ /
Privacy statementThe information collected through this application (including digital images) is done so for the primary purpose of assessing your application for WorkCover NSW Applied Research funding. Other purposes of collection include attending to administrative matters, corresponding with you (before or after application is submitted) and statistical analysis. If you choose not to complete all the questions on this form, it may not be possible for WorkCover NSW to assess your application. You have a right to access personal information that WorkCover NSW holds about you, subject to any exceptions in relevant legislation. If you wish to seek access to your personal information or enquire about the handling of your personal information, please contact The Manager, Planning, Performance and Research Unit on (02) 4321 5000.
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Appendix B
WorkCover NSW Applied research funding – Application checklist
Before you submit your proposal for a applied research funding, check that… Refer to page #
You are eligible to apply for funding under the applied research category of the WorkCover NSW research program.
2
You accept and are able to meet the conditions outlined in these guidelines. 2–4
Your proposal has been prepared for submission in the required format. 5–7
Your proposal clearly articulates your research concept and demonstrates how your research will address an identified gap or research question, either in relation to a nominated priority focus area, or in relation to work health and safety, injury management, or workers compensation in general.
9
Your proposal provides a clear description of how you will conduct the project within the required timeframes for applied research projects.
9
Your proposal includes advice about the total funds required (which is within the boundaries of the funding limit for the category), as well as a detailed breakdown of associated costs.
14
You have completed all sections of the application form and signed and scanned the form. Appendix A
You have attached the required supporting documentation. 16
You have noted the correct process for submission of applications. 7
You understand the way in which proposals will be assessed and how you will be notified of the outcomes of the assessment process.
8–9
You have noted where to go for further information. Inside front cover
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 17
Appendix C
Standard funding agreement clausesThe following conditions may be included in contractual arrangements, including but not limited to WorkCover ownership of intellectual property and copyright of reports and products, options for varying, suspending or terminating the project, reporting and communication, confidentiality, indemnity provisions and compliance with applicable laws.
1. Definitions and interpretation1.1 In this agreement, unless the contrary intention appears:
Aggregate funding cap means the maximum amount (not exceeding the total budget for the project) which may be payable by the principal to the recipient under this agreement, as specified in the payment schedule.
Agreement means this deed of agreement and includes any schedules and attachments.
Agreement commencement date means the date specified as such in item 3 of the agreement details.
Agreement details means the details contained in Schedule 1.
Background IP of a party means any intellectual property rights that are developed or owned by that party:
a. prior to the agreement commencement date, or
b. independently of this agreement.
Budget means the budget specified in the payment schedule (Schedule 2 to this agreement).
Child related work has the meaning given to that term in the Child Protection (Working with Children) Act 2012.
Confidential information of a party means any information disclosed by that party to the other party, whether before or after the agreement commencement date that:
a. is by its nature confidential
b. is designated as confidential, or
c. the other party knows or ought to know is confidential
but does not include information which:
d. is or becomes public knowledge other than by breach of this agreement, or
e. is in the lawful possession of the other party without restriction in relation to disclosure before the date of receipt of the information.
Commercialise means to exploit the results of the project which are capable of being exploited (including project material and any other intellectual property rights created in the course of the project) in a manner that will be of benefit (including benefits other than in the form of financial gain) to the principal, the recipient or to any other person.
Event of default has the meaning given to this term in clause 16 of this agreement.
Funding means the funding to be provided by the principal to the recipient on the terms of this agreement.
GST has the meaning as given in the GST law.
GST law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Instalment means each part of the funding payable on satisfactory achievement of the payment trigger for that amount (subject to the aggregate funding cap) as specified in the payment schedule.
Intellectual property rights includes patent, know-how, copyright, moral rights, design, semi-conductor or circuit layout rights, trade mark, trade, business or company names or other proprietary rights and any rights to registration of such rights, whether created before or after the agreement commencement date, in Australia or elsewhere.
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Party means a party to this agreement and parties means both of them.
Payment schedule means the Schedule 2 to this agreement.
Payment trigger means the relevant trigger for the payment of an instalment, as specified in the payment schedule.
Performance obligation means a performance obligation as defined in this agreement.
Personal information means:
a. information or an opinion (including information or an opinion forming part of a database) 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
b. health information for the purposes of the Health Records and Information Privacy Act 2002 (NSW).
Personnel in relation to a party to this agreement means the employees, officers, agents and contractors of that party and in relation to the recipient includes volunteers and patients participating in research.
Principal’s representative means the person named as such in the agreement details or such other person the principal may, from time to time, nominate in writing by giving notice to the recipient.
Probity event an event or occurrence which has or could have a material adverse effect on public confidence in, and/or the integrity of:
a. the source or reliability of any data underpinning any activities listed in the project plan, or
b. any licence, clearance or consent obtained for the project.
Project means the research project described in the agreement details and more fully described in the project plan.
Project materials means any material created during the term, by or on the recipient’s behalf for the purpose of the project, including any reports produced as part of the reporting requirements, supporting documentation, documents, software and data stored by any means.
Project plan means the project plan in Schedule 3, with changes as may be approved by the principal from time to time.
Project start date means the date on which the recipient commences the project as specified in item 3 of the agreement details.
Reporting requirements means the reporting requirements specified in Schedule 4.
Recipient’s representative means the person named as such in the agreement details or such other person as the recipient may, from time to time, nominate in writing by giving notice to the principal.
Special conditions means such special conditions as may be specified in item 13 of the agreement details.
Specified personnel means the persons specified as such in the agreement details.
Specified purpose means the specified purpose described as such in the agreement details.
Supporting documentation means the relevant supporting documentation, as specified in the payment schedule.
Tax invoice has the same meaning as given in the GST law.
Term means the period commencing on the agreement commencement date and ending on the earlier of:
a. the completion of the project, or
b. the termination of this agreement in accordance with its terms.
Working with children clearance has the meaning given to that term in the Child Protection (Working with Children) Act 2012.
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 19
1.2 In this agreement, unless the contrary intention appears:
a. References to legislation. A reference to legislation (including subordinate legislation) is a reference to that legislation as amended, consolidated, re-enacted or replaced, and includes any subordinate legislation issued under it.
b. Reconstitution of a party. A reference to an entity or body (including a statutory body) (the original body) which has ceased to exist or has been reconstituted, amalgamated or merged, or the functions of which have become exercisable by any other entity or body in its place (the new body), shall be taken to refer to the new body which now exercises the functions of the original body.
c. Time limits. Where any time limit pursuant to this agreement falls on a Saturday, Sunday or public holiday in the state of NSW then that time limit will be deemed to have expired on the next business day.
d. Grammatical forms. Where a word or phrase is given a defined meaning any other part of speech or other grammatical forms of that word have, unless the context otherwise requires, a corresponding meaning.
e. Rules of construction. No rule of construction operates to the detriment of a party only because that party was responsible for the preparation of this agreement or any part of it.
f. Actions by the principal. Where there occurs a reference to the doing of anything by the principal including giving any notice, consent, direction or waiver, this may be done by any duly authorised officer of the principal.
g. Joint obligations. Where a party is comprised of more than one person, each obligation of that party will bind those persons jointly and severally and will be enforceable against them jointly and severally.
h. Headings. The table of contents and headings in this agreement are for convenience only and do not affect the interpretation of this agreement.
i. Reasonableness. Where the principal is required to act reasonably in the performance of this agreement, that shall be read as a requirement to act as would a party in the position of the principal which is acting reasonably in its own best interests.
j. References to groups. A reference to a group of persons is a reference to all of them collectively, to any two or more of them collectively and to each of them individually.
k. References to persons. Persons will the taken to include any natural or legal person.
l. Monetary amounts. Monetary references are references to Australian currency.
m. Clause numbering. A reference to this clause is a reference to the whole clause as identified by the first level clause number such as X rather than X.X, unless specified otherwise.
2. Provision of funding2.1 The principal will provide the funding to the recipient for the specified purpose in accordance with and subject
to the terms of this agreement.
3. Term3.1 This agreement commences on the agreement commencement date and will continue for the term.
4. Performance obligations4.1 Each obligation described in this clause 4 is a performance obligation for the purposes of this agreement.
Budget and specified purpose
4.2 The recipient must at all times during the term use the funding:
a. for the specified purpose
b. in accordance with the budget.
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Reporting requirements
4.3 The recipient must, at all times during the term, comply with the reporting requirements.
Project timeframes
4.4 The recipient must:
a. commence the project no later than the project start date or such later time as approved by the principal in writing
b. notify the principal immediately:
i. of any delay or likely delay in the commencement of the project beyond the project start date, or
ii. if the project has been inactive for a period of 30 consecutive days or more.
c. conduct the project in accordance with the project plan and any reasonable directions given by the principal from time to time
d. complete the project, or cause the project to be completed, within the timeframe specified in the project plan.
Licences clearances and consents
4.5 The recipient must hold and keep current all rights and consents as required to conduct the project and otherwise fulfil its obligations under this agreement, including, where the project involves research in humans:
a. all relevant Human Research Ethics Committee approvals for the project
b. consents from guardians or trustees of any person subject to guardianship orders
c. parental consents in respect of any minor.
4.6 Without limiting clause 4.5, Where any activities in connection with the project involve child related work by any of the recipient’s personnel, the recipient must procure that each such personnel:
a. hold and maintain a working with children check clearance
b. provide all relevant personal details (including full name, date of birth and working with children clearance number or application number for such clearance) as may be required to enable the recipient and the principal to verify the working with children clearance status of the recipient’s personnel.
4.7 The recipient must on request produce satisfactory evidence to the principal that all of the rights, consents and clearances referred to in clauses 4.5 And 4.6 Have been obtained and are current.
Commercialisation
4.8 The recipient may commercialise the results of the project with the principal’s prior written consent which consent may be:
a. granted
b. withheld, or
c. granted on conditions
in the principal’s absolute discretion.
Residual costs of the project
4.9 For the avoidance of doubt and without limiting the recipient’s responsibilities under this agreement or otherwise, the recipient is responsible for all costs of, and associated with, the project and must:
a. contribute funds to, or arrange for funding by a third party for, the project which together with the funding is sufficient to meet all costs and expenses relating directly or indirectly with the project
b. immediately notify the principal if it is unable to comply with this requirement.
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 21
Specified personnel
4.10 The recipient must ensure that specified personnel undertake work in respect of the project in accordance with the project plan. Where any specified personnel is unable to work on the project for any reason, the recipient must notify the principal immediately and provide replacement personnel with comparable skill and experience at the earliest opportunity. All substitute personnel must be approved in writing by the principal prior to commencing work on the project.
Special conditions
4.11 The recipient must comply with the special conditions specified in the agreement details (if any).
Compliance with accessibility and anti-discrimination laws
4.12 The recipient must comply and ensure that its personnel comply with:
a. all requirements relating to occupational health and safety (including without limitation, the Work Health and Safety Act 2011)
b. all relevant anti-discrimination requirements (including without limitation, the Anti-Discrimination Act 1977).
4.13 Without limiting the obligations under clause 4.12(B), the recipient must ensure that the premises and any other location at which the project is conducted is accessible to persons with disabilities and comply with all statutory requirements, standards, planning approvals and certifications applicable to such access.
Conflict of interest
4.14 The recipient warrants that at the date of this agreement, none of its personnel involved or proposed to be involved in the project have a conflict of interest. The recipient undertakes to notify the principal, in writing, immediately upon becoming aware of the existence, or possibility, of a conflict of interest in respect of its personnel and agrees to comply with any reasonable directions of the principal to appropriately manage the conflict of interest, within the time frame stipulated by the principal in writing.
5. FundingConditions precedent to payment
5.1 The payment of funding or any part of the funding under this agreement is conditional on:
a. funding being available for the relevant purposes in the relevant statutory fund
b. the recipient meeting each and every performance obligation to the principal’s satisfaction.
Funding through instalments
5.2 Subject to the terms of this agreement, the principal will pay to the recipient each instalment as and when the payment trigger for that amount is achieved to the principal’s satisfaction.
Right to withhold funding
5.3 Without limiting the principal’s rights under this agreement, if:
a. the recipient fails to comply with one or more of its performance obligations to the principal’s satisfaction
b. the principal has a reasonable basis to believe that a performance obligation will not be met
c. any other condition precedent to payment of the funding is not, or ceases to be, met, or:
i. at the principal’s discretion, an audit of any matter relating to the project or the performance of this agreement is conducted on the terms of this agreement
ii. the results of this audit indicate that the recipient has not fully complied with each and every term of this agreement or has otherwise misled the principal whether before or after the date of this agreement
the principal may, upon notice, withhold payment of the funding (or any part of it) until:
d. the recipient fully performs each and every performance obligation to the principal’s satisfaction
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e. the principal is otherwise satisfied that the performance obligations will be met by the recipient in accordance with this agreement, or
f. all other conditions precedent to payment of the funding are otherwise met to the principal’s satisfaction.
Aggregate funding cap
5.4 Notwithstanding any other provision of this agreement, if at any time, the sum of:
a. all amount(s) paid by the principal to the recipient
b. any amounts withheld
under this agreement, is equal to or exceeds the amount of the aggregate funding cap, the recipient:
c. will not be entitled to any further payments from the principal under this agreement
d. must immediately notify the principal of this fact
e. must, upon request by the principal, immediately repay to the principal any excess amount.
6. Procedure for claiming payment6.1 Subject to the terms of this agreement, the principal will pay each instalment to the recipient within 30 days of
receipt of a correctly rendered tax invoice.
6.2 A tax invoice will be correctly rendered if:
a. it is complete and accurate in every particular
b. is accompanied by:
i. the supporting documentation applicable for the instalment
ii. such other documentation as may be requested by the principal which evidences to the principal’s satisfaction that the payment trigger for the instalment has been achieved.
6.3 The principal will make payments to the recipient by cheque or direct credit to an account, as notified by the recipient from time to time.
6.4 The principal may deduct from the amounts otherwise payable to the recipient under this agreement any amount due from the recipient to the principal under this agreement.
7. GST7.1 Unless otherwise indicated, all consideration for any supply under this agreement is exclusive of any GST
imposed in relation to the supply.
7.2 If:
a. despite any other provision of this agreement, GST is imposed on any supply by the recipient to the principal under this agreement
b. the principal is or will be entitled to receive an input tax credit (as defined in GST law) in relation to that supply
the principal will pay to the recipient an additional amount equal to the GST imposed on that supply, at the time and in the manner payment is otherwise payable under this agreement in relation to that supply.
7.3 The recipient must be registered under the GST law at the time of making any supply under this agreement on which GST is imposed.
7.4 If the recipient is not registered under the GST law as required under the immediately preceding subclause, the recipient will not be entitled to receive any additional amount as provided under this clause (GST).
7.5 If for any reason the principal pays to the recipient an amount under this clause (GST) which is more than the GST imposed on the supply, the recipient must repay the excess to the principal on demand or the principal may set off the excess against any other amounts due to the recipient.
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 23
7.6 If one party to the agreement (‘payer’) is required to indemnify or reimburse another party (‘payee’) for any cost, loss or expense incurred by the payee, the requirement to pay does not extend to any part of the cost, loss or expense that is recoverable by the payee (or an entity grouped with the payee for GST purposes) as an input tax credit.
8. Reports8.1 The recipient must:
a. submit reports to the principal as specified in the reporting requirements
b. on request, submit to the principal within the timeframe stipulated by the principal, any other information or reports that may be necessary to establish, to the principal’s satisfaction, that the performance obligations have been or are being satisfied by the recipient in accordance with this agreement.
8.2 The principal may use any report or information received from the recipient in the course of any activities within the principal’s functions for monitoring and evaluation purposes subject to compliance with its confidentiality obligations as set out this agreement.
8.3 If a report or any information submitted by the recipient is not satisfactory to the principal, the principal may, by notice to the recipient, require the recipient to submit a revised report satisfactory to the principal within 30 days of receipt of notice.
9. Review9.1 The recipient acknowledges that the principal will maintain regular contact with the recipient to monitor the
implementation of this agreement. Unless specified otherwise in the special conditions, there must be at least one contact in each quarter during the term.
9.2 Regular contact may include:
a. contact by telephone
b. in writing (including via email)
c. at meetings
between the principal’s representative and the recipient’s representative at such times, frequency or intervals as is reasonable given the length of the project, at the principal’s discretion and as may be further specified in the special conditions.
10. Access and audits10.1 Without derogating from any other rights under this agreement, the recipient must at all reasonable times give
the principal and/or its appointee full and free access to inspect:
a. the conduct of the project
b. the premises and any other location at which the project is conducted or located
c. all accounts, record and documents relating directly or indirectly to the performance of this agreement.
10.2 The principal may, at any time during the term and for a period of 12 months after the term:
a. conduct itself
b. require the recipient to arrange for an independent auditor (approved by the principal) to conduct
an audit of any matter relating to the project or the performance of this agreement as directed by the principal, including without limitation for the purpose of verifying any information provided to the principal in the course of this agreement and the recipient shall provide such person(s) with access on same terms as described in this clause 10 (access and audits).
10.3 The auditor may take copies of any records or documents that the auditor considers relevant to the audit.
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10.4 The principal may appoint an independent person to assist any audit under this agreement.
10.5 The costs of conducting an audit will be borne by the principal unless the results of the audit indicate that the recipient has not complied with the terms of this agreement or has otherwise misled the principal, in which case the cost of the audit will be borne by the recipient.
11. Indemnity and release11.1 The recipient shall at all times indemnify, hold harmless and defend the principal and its officers, employees
and agents (those indemnified) from and against any liability or loss (including reasonable legal costs and expenses), which may be suffered or incurred by any of those indemnified, arising directly from:
a. any infringement or alleged infringement of any intellectual property rights arising from the activities of the project
b. any act or omission of the recipient or any member of its personnel resulting in personal injury to, or the death of, any person
c. any act or omission of the recipient or any member of its personnel resulting in loss of, or damage to, property.
11.2 The recipient’s liability to indemnify those indemnified under this agreement shall be reduced proportionally to the extent that any unlawful, wrongful, wilful or negligent act or omission of those indemnified caused or contributed to the liability or loss.
11.3 The indemnity contained in this clause 11 is a continuing obligation of the recipient separate and independent of any other responsibility of the recipient and will continue beyond the term.
11.4 The recipient agrees to release and discharge those indemnified from any action, proceedings, claim or demand which, but for this provision, might be brought against or made upon those indemnified.
12. Insurance12.1 Without limiting the recipient’s obligations under this agreement, the recipient must effect and maintain, at its
expense, with a reputable insurance company each of following insurance policies:
a. broad form public liability insurance in the amount of not less than the insured amount as specified in the agreement details in respect of each and every occurrence and unlimited in the number of such occurrences over any one period of cover, during the term and for an additional period after expiry or termination of this agreement, such additional period being specified in the agreement details
b. workers compensation in accordance with applicable legislation in respect of all employees of the recipient and unlimited in the number of such occurrences over any one period of cover throughout the term
c. professional liability or errors and omissions insurance in the amount of not less than the insured amount specified in the agreement details in respect of each and every occurrence and unlimited in the number of such occurrences over any one period of cover during the term and for an additional period after expiry or termination of this agreement, such additional period being specified in the agreement details
d. such other insurance as would prudently be insured against by a person carrying on a similar project to the recipient during the term and for an additional period after expiry or termination of this agreement, such additional period being specified in the agreement details.
12.2 The recipient must on request, produce satisfactory evidence to the principal that any or all of the insurance policies required under this agreement are current.
12.3 The recipient must immediately notify the principal of any lapse in or suspension, or imposition of conditions in respect of, cover under any insurance policy required under this agreement.
12.4 If the recipient fails to satisfy its obligations under this clause 12 (insurance), the principal is entitled, at its discretion, to suspend funding in accordance with clause 5.3 or to terminate this agreement in accordance with clause 18.
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 25
13. Confidentiality and privacyConfidentiality
13.1 A party (receiving party) must keep the confidential information of the other party (disclosing party) in confidence and must not disclose any such information to any person without the prior written consent of the disclosing party, other than as provided in this agreement.
13.2 A receiving party may disclose the confidential information of the disclosing party:
a. to the receiving party’s personnel and its legal and professional advisers provided that the receiving party ensures that the recipient:
i. keeps the Confidential Information confidential
ii. does not use this information except for the purposes of this agreement,
the recipient acknowledges and agrees that for the purposes of this clause 13, the principal’s professional advisers include any person appointed by the principal to inspect, review and/or audit any matter relating to the project or this agreement
b. if required by:
i. law, including the Government Information (Public Access) Act 2009
ii. Government policy, or
iii. Parliamentary process.
13.3 Where the recipient discloses confidential information of the principal to the recipient’s personnel, the recipient must, if the principal requires it, procure that each of its personnel execute a deed of confidentiality and privacy in the form of the deed set out in Schedule 5 and deliver such executed deeds to the principal within 30 days or such other time as the principal may allow.
Privacy
13.4 Where the recipient has access to personal information in order to perform its obligations under this agreement, the recipient must:
a. ensure it complies with the Privacy Act 1988 (Cth)
b. not do or permit anything which would cause the principal to be in breach its obligations pursuant to:
i. the Privacy and Personal Information Protection Act 1998 (NSW)
ii. the Health Records and Information Privacy Act 2002 (NSW)
iii. any other applicable privacy legislation, regulations, privacy principles and codes, as amended from time to time.
c. ensure the personal information held by the recipient is protected against loss and against unauthorised access, use, modification and disclosure and other misuse
d. not remove personal information out of Australia or allow it to be accessed from outside Australia
e. not use the personal information other than for the purposes of the project without the prior written consent of the principal, unless required or authorised by law
f. not disclose the personal information without the prior written consent of the principal, unless required or authorised by law
g. ensure that access to personal information is restricted to those of its personnel who require access to conduct the project or perform this agreement
h. ensure that its personnel comply with the same obligations imposed on the recipient under this clause 13
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i. immediately notify the principal if the recipient becomes aware:
i. that a disclosure of personal information is or may be required or authorised by law, or
ii. of any breach of this clause 13,
j. upon request by the principal, obtain from its personnel a deed of confidentiality and privacy in the form of the deed set out in Schedule 5
k. comply with such other privacy and security measures as the principal reasonably advises the recipient in writing from time to time.
14. Intellectual property14.1 Unless expressly provided otherwise, nothing in this agreement affects a party’s ownership in background IP.
14.2 All Intellectual property rights in the project materials and the recipient’s background IP incorporated with the project materials, vest on creation in the principal or are otherwise hereby assigned by the recipient to the principal.
14.3 Where the recipient is unable to comply with clause 14.2 Because it does not own any of those intellectual property rights, the recipient must, at no cost to the principal, procure for the principal a perpetual licence including the right to sub-license, to use, reproduce, communicate to the public and adapt for its own purposes all those intellectual property rights.
14.4 The principal grants to the recipient, a perpetual, non-exclusive, royalty free, limited licence to use, reproduce, communicate to the public and adapt the intellectual property rights in the project materials, solely for the recipient’s academic purposes including teaching, publishing, presentation in conferences and research.
14.5 The recipient must hold, or obtain, consents from all authors of the project materials to its use and adaptation by the recipient, the principal and the principal’s sub-licensees, without restriction and without any requirement to attribute the project materials to its authors.
15. Change in ownership15.1 If the recipient is a company, the recipient must not, without the prior written consent of the principal, during
the term, effect any change in its share capital where as a consequence of this change:
a. there is a change in the effective control of the recipient, as this term is defined in the Corporations Act 2001 (Cth)
b. the majority of the issued shares in the recipient are:
i. registered in the names of persons who are not resident in Australia
ii. in the name of companies which are not incorporated in Australia or if incorporated in Australia have a majority of issued shares registered in the names of persons who are not resident in Australia
iii. owned directly or indirectly by persons who are not resident in Australia
c. the Recipient is deemed to be subsidiary of another company within the meaning of the Corporations Act 2001 (Cth).
16. Events of defaultBy the recipient
16.1 The recipient commits an event of default under this agreement if:
a. the recipient commits a material breach of this agreement (which includes, but is not limited to, any failure to comply with one or more of its performance obligations, which in all cases will be deemed a material breach) and in the principal’s opinion that breach is not capable of being remedied to the principal’s reasonable satisfaction
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 27
b. the recipient commits a material breach of this agreement (which includes, but not limited to, any failure to comply with one or more of its performance obligations, which in all cases will be deemed a material breach) and fails to remedy the breach to the principal’s reasonable satisfaction within 21 days of receiving a notice of default from the principal or such longer period that the principal may reasonably allow having regard to the nature of the breach and a reasonable time to remedy it
c. the recipient is a company and the recipient effects a change in the ownership of its shares other than in accordance with this agreement
d. a conflict of interest arises in relation to the existence or the subject matter of this agreement and the recipient fails to comply with its obligations under this agreement in relation to the management of such a conflict
e. the recipient is a natural person and the recipient is declared bankrupt or bankruptcy proceedings have commenced against the recipient or it becomes subject to any form of insolvency administration
f. the recipient is the subject of proceedings or investigations commenced or threatened by the Independent Commission Against Corruption, the police or similar public body
g. a probity event occurs, which is not:
i. addressed within the period notified by the principal to the recipient, or
ii. in the principal’s reasonable view, capable of being addressed.
to the principal’s reasonable satisfaction
h. the recipient breaches its confidentiality obligations under this agreement
i. a co-funding agreement is terminated for any reason
j. another funding provider withholds or otherwise suspends payment of any amount to the recipient under a co-funding agreement.
By the principal
16.2 The principal commits an event of default under this agreement if the principal fails to pay the funding in accordance with the terms of this agreement and fails to rectify any such failure this within two months of receiving a notice of default from the recipient.
Material non-compliance
16.3 Each party acknowledges that more than one failure to comply with a particular obligation under this agreement may constitute a material breach of that obligation for the purposes of this clause 16 (events of default).
17. Termination for convenience17.1 The principal may, at any time, terminate this agreement for convenience by giving three months notice to
the recipient, without the need to give reasons and without incurring any liability for such termination, such termination being effective upon expiry of this time period.
17.2 If the principal exercises its right to terminate for convenience:
a. the principal will pay the recipient any installment, on provision of a correctly rendered tax invoice, which is payable in relation to a payment trigger which has been achieved prior to the date of termination less any amount payable by the recipient to the principal under this clause (termination for convenience)
b. the principal will reimburse the recipient its unavoidable reasonable costs and expenses directly incurred as a result of termination provided that any claim by the recipient:
i. is limited to the amount of the cap on reimbursable unavoidable costs in the event of termination for convenience, as specified in the agreement details
ii. is supported by satisfactory written evidence of the costs claimed
iii. will be in total satisfaction of the liability of the principal to the recipient in respect of this agreement and its termination.
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c. the recipient must do everything reasonably possible to prevent or mitigate any losses resulting to the recipient from the termination
d. if the principal paid any amount to the recipient for the specified purpose which at the date of termination has not been expended by the recipient for that specified purpose:
i. the recipient must refund to the principal any such amount, within seven days of termination of this agreement
ii. the principal may recover in an appropriate court the balance of any amount not refunded as a debt due and payable by the recipient to the principal.
18. Termination for cause18.1 Either party may, by giving notice, immediately terminate this agreement, if the other party commits an event
of default.
18.2 If the principal exercises its right to terminate for cause, the recipient must repay to the principal the whole or any part of the funding which remains unspent or uncommitted by the recipient at the date of termination, within 30 days of the notice.
18.3 Any payment claimed by the principal from the recipient under this clause 18 (termination for cause) will be a debt due and owing by the recipient to the principal.
19. Upon termination19.1 The recipient must, except to the extent agreed between the parties in writing, deliver to the principal, within
seven days of termination or expiry of this agreement:
a. all project materials, de-identified aggregate data, project methodologies and any reports due to the principal under this agreement or otherwise requested by the principal, subject to any reasonable ethics approval conditions
b. all confidential information of the principal used by the recipient or its personnel or otherwise in their possession and all copies of such information,
subject to all such confidential information and project materials being de-identified to exclude any personal information.
19.2 The recipient must for a minimum period of six years following the expiration or termination of this agreement, keep all operational records and project data relating to the project securely and in a form and manner as to facilitate any access, inspection and/or audit under this agreement.
19.3 For the avoidance of doubt, upon termination or expiry of this agreement the recipient will not be entitled to any further payments under this agreement, notwithstanding that the amount paid to the recipient could be less than any applicable instalment or the aggregate funding cap specified in this agreement.
19.4 Any termination of this agreement by the principal is without prejudice to any accrued rights or remedies of the principal.
20. Dispute resolution20.1 The parties must attempt to settle any dispute in relation to this agreement in accordance with this clause 20
(dispute resolution) before resorting to court proceedings or other dispute resolution process.
a. A party claiming that a dispute has arisen, must give written notice of the dispute to the other party. On receipt of this notice the parties must within 14 days of receipt seek to resolve the dispute.
b. If the dispute is not resolved within this 14 day period or within such further period as the parties agree in writing then the dispute is to be referred to the Australian Commercial Dispute Centre (ACDC) for mediation.
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 29
c. The mediation shall be conducted in accordance with the ACDC mediation guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved.
d. If the dispute is not settled within 28 days (or such other period as agreed to in writing between the parties) after appointment of the mediator, or if no mediator is appointed within 28 days of the referral of the dispute to mediation, the parties may pursue any other procedure available at law for the resolution of the dispute.
e. If the principal requests it, the recipient must continue performing this agreement while a dispute is being dealt with in accordance with this clause 20, other than such obligations (or part thereof) which are the subject of the dispute, to the extent practicable to do so.
f. Nothing in this clause 20 (dispute resolution) will prevent either party from seeking urgent interlocutory relief.
21. Public relationsPublicity
21.1 The recipient must not during the term make any press release or other public announcement in relation to the project or the funding, or cause any such release or announcement to be made unless it has:
a. provided the Principal with a copy of the proposed release or announcement
b. obtained the Principal’s consent to the release or announcement.
21.2 The recipient must during the term acknowledge the funding and the principal in any public statements about the project, including at any official opening of the project.
21.3 The principal may publicise the awarding of the funding at any time after it is awarded. Without limiting the preceding, the principal may publicise any of the following details:
a. the name of the recipient
b. the names of specified personnel
c. the amount of the funding
d. the title and brief description of the project
e. the location (such as town or state) where the project is being undertaken.
21.4 If required by the principal, the recipient agrees to provide the principal with material for the preparation by the principal of a case study on the recipient and the project, excluding any information agreed to be confidential or commercially sensitive.
21.5 Any publicity or publications pursuant to this clause 21 must contain a statement to the effect that the views expressed are not the views of the principal.
22. Notices22.1 A notice under this agreement must be:
a. in writing, directed to the representative of the other party as specified in the agreement details
b. forwarded to the address, facsimile number or the email address of that party’s representative as specified in the agreement details or the address last notified by the intended recipient to the sender.
22.2 A notice under this agreement will be deemed to be served:
a. in the case of delivery in person – when delivered to the recipient’s address for service and a signature received as evidence of delivery
b. in the case of delivery by post – within three business days of posting
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c. in the case of delivery by facsimile – at the time of dispatch if the sender receives a transmission report which confirms that the facsimile was sent in its entirety to the facsimile number of the recipient
d. in the case of delivery by email – on receipt of confirmation by the sender that the recipient has received the email.
22.3 Notwithstanding the provisions of this clause 22 (notices), if delivery or receipt of a communication is on a day which is not a business day in the place to which the communication is sent or is later than 5 pm (local time in that place) it will be deemed to have been duly given or made at 9 am (local time at that place) on the next business day in that place.
23. VariationsChange within scope of the project
23.1 In the event the principal requires a change to the project, whether on request from the recipient or otherwise, the principal will inform the recipient of the change requirement or variation in the form of a change notice (change notice). The changes set out in the change notice shall be deemed to apply from the date of the change notice or such other date as the principal may reasonably specify in the change notice.
24. MiscellaneousAssignment and sub-contracting
24.1 The recipient must not assign, sub-contract or otherwise transfer any right or obligation under this agreement without the principal’s prior written consent which may be either:
a. granted
b. withheld, or
c. granted on conditions
in the Principal’s absolute discretion.
24.2 Any approval granted by the principal pursuant to clause 24.1 Will not:
a. relieve the recipient from its obligations under this agreement
b. create any contractual relationship between the principal and the assignee or sub-contractor.
24.3 Prior to any employee, officer or contractor of the assignee or sub-contractor commencing work on the project, the recipient must obtain and deliver to the principal a written assignment from that person to the principal of all intellectual property rights created by that person in the course of that person working on the project.
24.4 The terms of any sub-contract between the recipient and approved sub-contractor must include termination provisions which are no less favourable to the recipient than the principal’s termination rights under this agreement.
Writing
24.5 All amendments to this agreement and all consents, approvals, waivers and agreements made under or pursuant to this agreement must be evidenced in writing.
Consents
24.6 A party may give its consent, approval or waiver conditionally or unconditionally or may withhold its consent, approval or waiver in its absolute discretion, unless this agreement specifically provides otherwise.
Non-waiver
24.7 No failure or delay by the principal in exercising any right, power or remedy under this agreement and no course of dealing or grant by the principal to the recipient of any time or other consideration, will operate as a waiver of the breach or a default by the recipient. Any waiver by the principal of a breach of this agreement will not be construed as a waiver of any further breach of the same or any other provision.
APPLIED RESEARCH – GUIDELINES FOR APPLICANTS 31
Entire agreement
24.8 This agreement constitutes the entire agreement and understanding between the parties as to the subject matter of this agreement. Any prior arrangements, representations or undertakings as to the subject matter of this agreement are superseded.
Inconsistency
24.9 In the event of an inconsistency between the terms of this agreement, for the purpose only of resolving the inconsistency, the documents that comprise this agreement are to be considered in the following order of decreasing priority:
a. the operative provisions of this agreement
b. Schedule 1
c. Schedule 2.
d. the other attachments.
Survival
24.10 The following clauses in this agreement shall survive termination, expiry or repudiation of this agreement:
a. reports (clause 8)
b. access and audits (clause 10)
c. indemnity and release (clause 11)
d. insurance (clause 12)
e. confidentiality and privacy (clause 13)
f. intellectual property (clause 14)
g. consequences of termination (clause 19)
h. dispute resolution (clause 20)
i. public relations (clause 21)
j. any clauses dealing with the commercial exploitation of the results of the project (including project materials and any other intellectual property rights created in the course of the project)
k. any other provision of this agreement which by its nature should survive termination the agreement.
Legal advice and costs
24.11 Each party acknowledges that in relation to this agreement:
a. it has received legal advice or has had the opportunity to obtain legal advice
b. it will bear its own costs incurred in relation to this agreement.
Severability
24.12 If any part of this agreement is prohibited, void, voidable, illegal or unenforceable, then that part is severed from this agreement but without affecting the continued operation of the remainder of the agreement.
Relationship
24.13 Neither party is an employee, agent, partner, officer, joint-venturer or legal representative of the other for any purpose.
Representations
24.14 The recipient and the principal are independent contractors and nothing in this agreement shall be deemed to constitute the principal or any personnel of the principal as an officer, employee, agent, contractor or partner of the recipient.
32 WORKCOVER NSW
24.15 The recipient shall not represent itself, and shall ensure that all of its personnel engaged in the performance of this agreement, do not represent themselves as being employees or agents of the principal unless such representation is specifically authorised in writing by the principal.
Counterparts
24.16 This agreement may be executed by counterparts by the respective parties, which together will constitute one deed of agreement.
Applicable law
24.17 This agreement is governed by, and must be construed in accordance with, the laws in force in the state of NSW.
Governing jurisdiction
24.18 Each party submits to the exclusive jurisdiction of the courts exercising jurisdiction in the state of NSW and the courts of appeal therefrom.
Catalogue No. WC01535 WorkCover Publications Hotline 1300 799 003 WorkCover NSW, 92–100 Donnison Street, Gosford, NSW 2250
Locked Bag 2906, Lisarow, NSW 2252 | Customer Service Centre 13 10 50 Website workcover.nsw.gov.au
ISBN 978 1 74341 551 1 © Copyright WorkCover NSW 0914
