DRAFT FUNDING AGREEMENT

IN RELATION TO THE EMPOWERING YOUTH INITIATIVESROUND 1 2016-2018

Commonwealth of Australia represented by the
Department of Employment

ABN 54 201 218 474

^Party 2 Name^

^Party 2 ABN^ ^Party 2 ACN^

L\315542770.2

Contents

1.Interpretation

1.1Definitions

1.2Interpretation

1.3Construction of Agreement

1.4Term of Agreement

2Initiative

2.1Your principal obligations

3Funding

3.1Payment

3.2Use of Funding

3.3Budget

3.4Keeping of Funding

3.5Repayments

3.6Double Payment

3.7Debt and Interest

3.8Taxes, duties and government charges

4Other Contributions

4.1Other Contributions19

5Records

5.1Records You must keep

5.2Financial Accounts and Records

5.3Storage

5.4Recording

5.5Access

5.6Transfer

5.7Retention

5.8Destruction

5.9Access by Participants to Records held by You

5.10Access to documents for the purposes of the Freedom of Information Act 1982 (Cth)

5.11Access to premises and Records

5.12Record of Participants’ attendance

6Information Technology

6.1Third Party IT Providers

6.2Security

7Fraud

8Subcontractors

9Personnel

10Your responsibility

10.1Your responsibility

10.2Checks and reasonable care

11Assets

11.1Acquisition of Assets

11.2Your responsibilities for Assets

11.3Sale or Disposal of Assets

11.4Loss, damage etc. of Assets

11.5Dealing with Assets

12Liaison and monitoring

12.1Liaise and comply

12.2Information, monitoring and Initiative reporting

13Evaluation activities

14Initiative Assurance Activities and review

15Reporting

16Intellectual Property

16.1Use of Commonwealth Material

16.2Intellectual Property in Initiative Material

16.3Moral Rights

17.Disclosure of Information

17.1Confidential Information not to be disclosed

17.2Written undertakings

17.3Exceptions to obligations

17.4Period of confidentiality

17.5General

18.Personal and Protected Information

18.1Personal Information

18.2Protected Information35

19.Acknowledgement and publicity

19.1Acknowledgement and promotion

19.2Right to publicise Funding

19.3No restriction on advocacy

20.Liability

20.1Proportionate liability regimes excluded

20.2Indemnity

20.3Joint and several liability

21.Dispute resolution

21.1Procedure for dispute resolution37

21.2Costs38

21.3 Continued Performance38

21.4 Exemption38

22.Termination or reduction in scope of Initiative

22.1Termination or reduction with costs38

22.2Payments

22.3Reimbursements

22.4Your obligations39

22.5 Abatement of funding39

22.6 Limit on compensation39

23.Termination for default0

23.1Termination for default1

23.2Preservation of other rights41

24.Notices

24.1Format, addressing and delivery

24.2When received

25.Special rules about Consortiums

26.Corporate Governance

26.1Constitution

26.2Notification

26.3Management

26.4Change in Control of You or a Subcontractor

27.General provisions

27.1Insurance

27.2Extension of provisions to Subcontractors and Personnel

27.3Conflict of interest

27.4Relationship of Parties

27.5Waiver

27.6Variation

27.7Assignment and Novation

27.8Survival

27.9Compliance with Laws and Our Policies

27.10Applicable law

Schedule 148

Schedule 259

AGREEMENT

Parties

This Agreement is made between and binds the following Parties:

  1. Commonwealth of Australia (‘Commonwealth’, ‘Us’, ‘We’ or ‘Our’) represented by and acting through the Department of Employment, ABN 54 201 218 474 (‘Department’)
  2. ^Insert funding recipient legal Name^^Insert funding recipient ABN and ACN/ARBN if applicable^

^Insert funding recipient Address^ (‘You’, or ‘Your’)

Context

  1. We administer the Empowering YOUth Initiatives which aims to:

a)help more young people at risk of long-term unemployment to find and keep a job;

b)identify innovative approaches that have the greatest potential to improve employment outcomes for young people at risk of long-term unemployment and prevent long-term welfare dependency; and

c)promote learnings from the Empowering YOUth Initiatives to assist government and organisations working with young people to enhance current and future service delivery.

  1. You are committed to helping achieve the Objectives of the Empowering YOUth Initiativesthrough Your conduct of the Initiative.
  2. As a result of this commitment, We agree to support the Initiative by providing the Funding to You, subject to the terms and conditions of this Agreement.
  3. You agree to accept the Funding on the terms and conditions set out in this Agreement.

OPERATIVE PROVISIONS

  1. Interpretation
  2. Definitions
  3. In this Agreement, unless the context indicates otherwise:

Agreement / means this document, as varied or extended by the Parties from time to time in accordance with this Agreement, and includes the schedules, annexures, if any, and documents incorporated by reference;
Agreement Records / means all Records:
  1. developed or created or required to be developed or created as part of or for the purpose of performing this Agreement;
  2. incorporated in, supplied or required to be supplied along with the Records referred to in paragraph a. above; or
  3. copied or derived from Records referred to in paragraphs a. or b.; and
includes all Reports;
Asset / means any item of tangible property, which has a value of over $1,000 inclusive of GST and is purchased or created either wholly or in part with the use of the Funding but excludes any Intellectual Property rights;
Australian Auditing Standards / refers to the standards made by the Auditing and Assurance Standards Board created by section 227A of the Australian Securities and Investments Commission Act 2001 (Cth);
Australian Equivalents to International Financial Reporting Standards or AEIFRS / refers to the standards of that name maintained by the Australian Accounting Standards Board created by section 261 of the Australian Securities and Investments Commission Act 2001 (Cth);
Budget / means the budget set out in item C of Schedule 1;
Business Day / means in relation to the doing of any action in a place, any day other than a Saturday, Sunday or public holiday in that place;
CCBY Licence / means a Creative Commons Attribution 3.0 Australia ( licence;
Change in Control / means:
  1. subject to paragraph b. below, in relation to a Corporation, a change in any of the following:
(i)Control of more than one half of the voting rights attaching to shares in the Corporation, whether due to one or a series of transactions occurring together or on different occasions;
(ii)Control of more than one half of the issued share capital of the Corporation, whether due to one or a series of transactions occurring together or on different occasions, excluding any part of the issued share capital which carries no right to participate beyond receipt of an amount in the distribution of either profit or capital; or
(iii)Control of more than one half of the voting rights attaching to membership of the Corporation, where the Corporation does not have any shareholders;
  1. in relation to a Corporation which is owned or controlled by a trustee company, any change as set out in paragraph a. above in relation to either that Corporation or its corporate trustee;
  2. in relation to a partnership:
(i)the sale or winding up or dissolution of the business by the partners;
(ii)a change in any of the partners; or
(iii)the retirement, death, removal or resignation of any of the partners;
  1. in relation to an Exempt Public Authority, a change in relation to any of the following:
(i)the composition of the board of Directors;
(ii)ownership of any shareholding in any share capital; or
(iii)the enabling legislation so far as it affects Control, if any;
  1. in relation to a Consortium:
(i)any change in the membership of the Consortium;
(ii)a change of the lead member of the Consortium, if the Consortium has appointed a lead member for the purposes of this Agreement; or
(iii)a Change in Control as defined in paragraphs a. to .d. above in any member of the Consortium;
Child / means a person under the age of 18 years, and ‘Children’ has a corresponding meaning;
Commonwealth Coat of Arms / means the Commonwealth Coat of Arms as set out at It’s an Honour – Commonwealth Coat of Arms available at
Commonwealth Material / means any Material:
  1. provided by Us to You for the purposes of this Agreement; or
  1. derived at any time from the Material referred to in paragraph a.;
and includes Commonwealth Records, and does not include Initiative Material;
Commonwealth Records / means any Records provided by Us to You for the purposes of this Deed, and includes Records which are copied or derived from Records so provided;
Community Development Programme Provider / means any entity contracted by the Department of the Prime Minister and Cabinet to provide services under the Community Development Programme;
Competent Person / means a person who has acquired through training, qualification or experience the knowledge and skills to carry out specific work health and safety tasks, and as otherwise specified in any guidelines;
Completion Date / means the date specified in item A.3.2of Schedule 1;
Condition of Offer / means a condition placed by the Department on Our offer of this Agreement to You;
Conflict / refers to a conflict of interest, or risk of a conflict of interest, or an apparent conflict of interest arising through You, Your Personnel or Subcontractors engaging in any activity or obtaining any interest that may interfere with or restrict You in conducting the Initiative to Us fairly and independently;
Consortium / means a group of two or more entities, however constituted, other than a partnership, which have entered into an arrangement for the purposes of jointly delivering the Initiative, and which may have appointed a lead member of the group with authority to act on behalf of all members of the group for the purposes of this Agreement, as specified in item A of Schedule 2;
Control / has the meaning given to that term in section 50AA of the Corporations Act 2001 (Cth);
Corporation / has the meaning given to that term in section 57A of the Corporations Act 2001 (Cth);
Cybersafety Policy / means the Commonwealth policy of that name as specified at item Q.2of Schedule 1;
Date of this Agreement / means the date written at the top of the signature page of this Agreement, and if no date or more than one date is written there, then the date on which this Agreement is signed by the last Party to do so;
Department / means the Department of Employment and includes any department, agency or authority of the Commonwealth which is from time to time responsible for administering this Agreement;
Department Employee / means an employee of the Commonwealth working for Us and:
  1. any person notified by Us to You as being a Department Employee; and
  2. any person authorised by law to undertake acts on behalf of Us;

Depreciated / means the amount representing the same reduced value of an Asset as calculated for income tax purposes under, and in accordance with, the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth);
Director / means any of the following:
  1. a person appointed to the position of a director or alternate director, and acting in that capacity, of a body corporate within the meaning of the Corporations Act 2001 (Cth) regardless of the name given to their position;
  2. a member of the governing committee of an Aboriginal and Torres Strait Islander corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);
  3. a member of the committee of an organisation incorporated pursuant to state or territory laws relating to the incorporation of associations;
  4. a person who would be a director of the body corporate under paragraph (a) above if the body corporate were a body corporate within the meaning of the Corporations Act 2001 (Cth);
  5. a person who acts in the position of a director of a body corporate;
  6. a person whose instructions or wishes the directors of a body corporate are accustomed to acting upon, and not simply because of the person’s professional capacity or business relationship with the directors or the body corporate; and
  7. a member of the board, committee or group of persons (however described) that is responsible for managing or overseeing the affairs of the body corporate;

Disability Employment Services Provider / means an entity contracted by the Department of Social Services to provide disability employment services;
Employment Services Provider / means a jobactive Provider, Transition to Work Provider, Community Development Programme Provider and a Disability Employment Services Provider;
Empowering YOUth Initiatives / means the initiative of that name which is administered by the Department;
Exempt Public Authority / has the meaning given to that term in section 9 of the Corporations Act 2001 (Cth);
Existing Material / means any Material, except Commonwealth Material, which was in existence before the Date of this Agreement or which is developed independently of this Agreement and which is incorporated in, supplied with or as part of, or required to be supplied with or as part of, the Initiative Material and includes, but is not limited to, Material specified in item J of Schedule 1;
Financial Year / means a period from 1 July in one year to 30 June in the following year occurring during the Initiative Period, or any part of such a period occurring at the beginning or end of anInitiative Period;
Funds or Funding / means the amounts (in cash or kind) payable by Us under this Agreement as specified in item B of Schedule 1 and includes interest earned on the Funding;
Grant Guidelines / means the Grant Guidelines for Empowering YOUth Initiatives Round 1;
Initiative / means the Initiative described in item A of Schedule 1 and includes the provision to Us of the Initiative Material specified in item A of Schedule 1;
Initiative Assurance Activities / refers to activities that may be conducted at any time, to assist Us in determining whether You are meeting Your obligations under the Agreement;
Initiative Material / means any Material:
  1. created for the purposes of this Agreement;
  1. provided or required to be provided to Us under the Agreement; or
  2. derived at any time from the Material referred to in paragraphs a. or b.;
and includes
  1. any Existing Material incorporated in the Material referred to in paragraphs a. to c.; and
  2. any Reports and Agreement Records;

Initiative Officer / means the person specified (by name or position) in item D of Schedule 1 or any substitute notified to You;
Initiative Period / means the period specified in itemSchedule 1.A.3 of Schedule 1 during which the Initiative must be completed;
Intellectual Property / includes:
  1. all copyright (including rights in relation to phonograms and broadcasts);
  1. all rights in relation to inventions (including patent rights), plant varieties, trademarks (including service marks), designs and circuit layouts; and
  2. all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields,
but does not include:
  1. Moral Rights;
  2. the non-proprietary rights of performers; or
  3. rights in relation to confidential information;

Interest / means interest calculated at a rate determined by the Department that will be no higher than the 90 day bank-accepted bill rate (available from the Reserve Bank of Australia) less 10 basis points;
jobactive Provider / means any entity contracted by the Commonwealth to provide jobactive services under the jobactive Deed 2015-2020;
Material / means equipment, software (including source code and object code), goods, and Records stored by any means including all copies and extracts of the same;
Milestone / means a stage of completion of the Initiative as set out in item A of Schedule 1;
Moral Rights / means the following non-proprietary rights of authors of copyright Material:
  1. the right of attribution of authorship;
  1. the right of integrity of authorship; and
  2. the right not to have authorship falsely attributed;

Notice / means a written notice in accordance with clause 24 and ‘Notify’ has an equivalent meaning;
Notifiable Incident / has the meaning given in the WHS Act;
Objectives / means the objectives described in item A of Schedule 1;
Other Contributions / means financial or in-kind resources (with in-kind resources valued at cost), other than the Funding, which are specified at item C of Schedule 1 and are to be used by You for the Initiative;
Our Confidential Information / means Our information that:
  1. is described in item L of Schedule 1;
  1. We identify, by Notice in writing to You after the Date of this Agreement as confidential information for the purposes of this Agreement; or
  2. You know or ought reasonably to know by its nature is confidential;

Our Security Policies / means policies relating to the use and security of Our IT systems and Records, and includes Our policy by the name of External Security Policy - For Contracted Service Providers and Users and any other security policies Notified by Us from time to time;
Participant / means a person between 15 and 24 years of age (inclusive) who has been unemployed for 12 months or more, or is at risk of being long-term unemployed and who meets the eligibility requirements set out in item A of Schedule 1;
Participant Records / means Agreement Records about a Participant, that are directly created for the purposes of conducting the Initiative;
Party / means a party to this Agreement;
Personal Information / has the same meaning as it has in section 6 of the Privacy Act;
Personnel / means:
  1. in relation to You - any natural person who is an officer, employee, agent or professional advisor of You or Your Subcontractors; and
  2. in relation to Us - any natural person, other than a person referred to in paragraph a., who is an officer, employee, agent or professional advisor of Us;

Privacy Act / means the Privacy Act 1988 (Cth);
Protected Information / has the same meaning as under section 23 of the Social Security Act 1991;
Qualified Accountant / means a person who is a member of the Institute of Chartered Accountants in Australia or of CPA Australia;
Records / means documents, information and data stored by any means and all copies and extracts of the same, and includes Agreement Records Our Records, and Your Records;
Records Management Instructions / means any guidelines provided by Us from time to time in relation to the management, retention and disposal of Records;
Reimbursement / means any amounts payable by Us under this Agreement as a reimbursement, or such other payments that may from time to time be Notified by Us to be a reimbursement;
Regulator / means the person who is the regulator within the meaning of the WHS Act;
Report / means Initiative Material that is provided for reporting purposes under clause 15 and as stipulated in item H of Schedule 1;
Security Contact / means one or more Personnel with responsibility:
(a)for ensuring the Provider’s compliance with the Our Security Policies;
(b)to use the online identity and access management tool to manage system access; and
(c)to communicate with the Department in relation to IT security related matters;
Subcontract / means any arrangement entered into by You by which some or all of the obligations under this Agreement are performed by another entity;
Subcontractor / means any party which has entered into a Subcontract with You;
Term / refers to the period described in clause 1.4;
Third Party IT Provider / means an entity contracted by You to provide information technology services to You for the purposes of conducting the Initiative, whether or not the entity is a Subcontractor, and includes a third-party hosting entity and an outsourced information technology service provider;
Transition to Work Provider / means any entity contracted by the Commonwealth to provide Transition to Work services under the Transition to Work Deed 2016-2020;
Undepreciated / means the value of an Asset which has not been Depreciated;
WHS Act / means the Work Health and Safety Act 2011 (Cth) and any corresponding WHS law within the meaning of section 4 of the WHS Act;
WHS Entry Permit Holder / has the same meaning as that given in the WHS Act;
WHS Laws / means the WHS Act, regulations made under the WHS Act, and all relevant state and territory work, health and safety legislation;
Working with Children Laws / means the:
  1. Child Protection (Working with Children) Act 2012 (NSW);
  2. Working with Children (Risk Management and Screening) Act 2000 (Qld);
  3. Working with Children (Criminal Record Checking) Act 2004 (WA);
  4. Working with Children Act 2005 (Vic);
  5. Children’s Protection Act 1993 (SA);
  6. Working with Vulnerable People (Background Checking) Act 2011 (ACT);
  7. Care and Protection of Children Act 2007 (NT);
  8. Registration to Work with Vulnerable People Act 2013 (TAS); and
  9. any other legislation that provides for the checking and clearance of people who work with Children;

Your Confidential Information / means Your information that:
  1. is described in item L of Schedule 1;
  1. You identify, by Notice in writing to Us after the Date of this Agreement and that We agree to treat as confidential information for the purposes of this Agreement; or
  1. that We know, or ought reasonably to know by its nature is confidential.

1.2Interpretation