New Energy Jobs FundFunding Agreement

Community category

(Project Implementation)

[insert name of specific project being funded]

THE STATE OF VICTORIA

as represented by its

DEPARTMENT OF ENVIRONMENT, LAND, WATER AND PLANNING

AND

[RECIPIENT]

[This is the Funding Agreement for the Future Industries Fund, Community category of the New Energy Jobs Fund Grants Program. This agreement can only be used by not-for profit community-based organisations and registered higher education providers operating in Victoria. The Schedules will be tailored as required for each Project funded under the Program. The Department reserves the right to amend the terms and conditions without prior notice.]

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ME_128189915_1 (W2007)

ME_128189915_1 (W2007)

Funding Agreement

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Details1

Agreed terms2

1.Defined terms and interpretation2

2.Term7

3.Grant7

4.Conditions Precedent7

5.Grant payment8

6.Project Plan and Milestones9

7.Conduct of Project10

8.Assets11

9.Government Funding Agreements12

10.Participating Organisation Agreement12

11.Publicity and promotion14

12.Written reports14

13.Records, audit and inspection15

14.Compliance with undertakings and deterioration in financial circumstances16

15.Liability18

16.Intellectual Property18

17.Indemnity and Insurance19

18.Confidentiality20

19.Conflict of interest21

20.Delay21

21.Dispute22

22.Force majeure23

23.Notices24

24.Miscellaneous24

Signing page27

1

Details

Parties

Name

The State of Victoria as represented by the Department of Environment, Land, Water and Planning

Address and notice details

Address: Level 3, 8 Nicholson Street, Melbourne Vic 3002

Email:

Attention:

Name

[insert name and ABN]

ABN

[insert]

Short form name

Recipient

Address and notice details

Address: [insert]

Email: [insert]

Attention: [insert]

Background

In December 2015 the Minister launched the New Energy Jobs Fund Grants Program (Program), an initiative under the Victorian Government's Future Industries Fund, with the objective of supporting Victorian-based new energy technology projects that create or preserve long-term sustainable jobs.

The Recipient applied for and has been successful in receiving the Minister's approval for a Grant under the Community category of the Program for the purpose of the Recipient carrying out the Project.

This Agreement sets out the terms on which the Grant is provided by the State to the Recipient.

This Agreement is legally binding upon the Recipient and the State.

Agreed terms

Defined terms and interpretation

Defined terms

In this document:

Agreement means this agreement, including its schedules and annexures.

Asset Acquisition Amount means the amount set out in item11 in Schedule1.

Asset Threshold means the amount set out in item7 in Schedule1.

Assets means those assets purchased, constructed or manufactured for the purpose of the Project or purchased with the Grant.

Assets Access Period means the period set out in item8 in Schedule1.

Audit Opinion means an audit opinion in the form of Schedule4, PartB (or such other form approved in writing by the Department).

Background Intellectual Property means any Intellectual Property developed independently of the Project and used by the Recipient or any Participating Organisation for the purpose of undertaking the Project.

Business Day means a day other than a Saturday, Sunday or a day that is a public holiday in Melbourne.

Claim means any cause of action, allegation, claim, demand, debt, liability, suit or proceeding of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent or at law (including negligence), in equity, under statute or otherwise.

Co-funding Amount means the amount set out in item2 in Schedule1.

Commencement Date means the date on which this Agreement has been signed by the last of the parties to sign it.

Community Engagement Plan has the meaning set out in clause7.2(c)(vii).

Company means a company registered under the Corporations Act 2001 (Cth).

Confidential Information of a party (Disclosing Party) means all information (regardless of its form) disclosed or otherwise made available by the Disclosing Party to the other party (Receiving Party) or of which the Receiving Party otherwise becomes aware in connection with this Agreement and the transactions contemplated by this Agreement which is marked as confidential or which is Background Intellectual Property or which the parties agree in writing is confidential, but does not include information which:

is or becomes public knowledge other than by a breach of this Agreement or any other confidentiality obligation by the Receiving Party;

has been independently developed or acquired by the Receiving Party as established by written evidence; or

is contained in the non-confidential section of each of the Progress Reports, Final Report and other reports set out in Schedule3 and/or Schedule5.

Conflict refers to a conflict of interest, or risk of a conflict of interest, or an apparent conflict of interest arising through the Recipient engaging in any activity or obtaining any interest that is likely to conflict with or restrict the Recipient undertaking the Project fairly and independently and in accordance with this Agreement, but does not include the fact that the Recipient or a 'related entity' (as that term is defined in the Corporations Act 2001 (Cth)) of the Recipient may profit from the Project.

Department has the meaning given in clause1.3.

Eligible Project Expenditure means the following expenditure categories incurred by the Recipient and/or a Participating Organisation on the Project:

0. expenditure incurred under a contract entered into by the Recipient or a Participating Organisation with a third party for the purposes of undertaking the activities required for the Project (subject to the ineligible expenditure exceptions below);

labour expenditure (ie, salaries/wages) including reasonable on-costs for the proportion of personnel's time for which they are directly employed on the Project, but excluding profit mark-ups. Labour on-costs include workers compensation insurance, employer contributions to superannuation, recreation and sick leave, long service leave accrual and payroll tax;

administrative expenses including communications, accommodation, computing facilities, travel, recruitment, printing and stationery, where directly related to the Project;

plant/site expenditure such as rent, light and power and repairs and maintenance directly related to the Project;

expenditure related to legal, audit and accounting costs directly related to the Project;

interest expenditure on finance for new capital items purchased for the Project for up to four years;

relevant licence fees or intellectual property purchase or licence costs, where the Recipient or a Participating Organisation needs to access specific technology in relation to the Project; and

expenditure related to the obtaining of approvals associated with the Project, provided the Recipient has obtained prior written approval of the Department to include that expenditure,

but does not include expenditure on:

the general operations and administration of the Recipient or a Participating Organisation that the Recipient or a Participating Organisation could reasonably be expected to undertake in the normal course of business;

the raising of funding for the Project, or the implementation of consortia, joint ventures or other partnership arrangements related to the Project;

activities that are part of the Project but are funded by other Government funding, which would lead to the Commonwealth and/or State Government funding the same activity more than once;

building websites, marketing, sales and promotional activities (unless prior written approval from the Department to include this expenditure is obtained);

research and development, other than prototyping, evaluation and testing of new products and processes for commercial-ready technologies;

undertaking commercialisation activities, such as sales promotion;

Intellectual Property protection, maintenance, defence or enforcement and legal fees developed through the Project; or

activities that do not directly support the achievement of the planned outcomes of the Project, or that are contrary to the spirit or intention of the Program.

End Date means the date that is one year after the date on which the Department notifies the Recipient in writing that it has accepted the Final Report provided to it by the Recipient.

Final Report means the report required to be provided by the Recipient to the Department under clause12.2.

Good Engineering Practice means the recognised engineering practices, policies, methods and acts expected from a highly competent infrastructure provider experienced in works of a similar size, character and complexity to the Project.

Good Industry Practice means the exercise of that degree of skill, diligence, prudence and foresight that reasonably would be expected from an entity or organisation in the same position as the Recipient that is consistent with the Recipient's obligations under this Agreement, applicable regulat