PART B - GRANT CONTRACTTERMS AND CONDITIONS
- PURPOSE OF AGREEMENT
1.1.This Agreement is read in conjunction with Part A - Specific Project Activity Details and establishes the terms and conditions upon which NQ Dry Tropics will pay the Proponent the Grant Funds and the Proponent will perform the Deliverables.
- PRIORITY OF DOCUMENTS
2.1. The following documents together comprise the Agreement:
2.1.1.Part A - Project Specific Details, including Schedules 1 to 4, the execution page and any special conditions specified in Schedule 2.
2.1.2.Part B - Grant ContractTerms and Conditions
2.2.If there is any ambiguity, inconsistency or conflict between the provisions of any of the documents forming part of this Agreement, then unless otherwise stated, the documents take precedence in the following order:
2.2.1.Any special conditions specified in Part A - Schedule1;
2.2.2.Part B - Grant ContractTerms and Conditions;
2.2.3.Part A - Project Specific Details;
2.2.4.Any other documents attached or referred to in this Agreement, or which NQ Dry Tropics or the Department provides to the Proponent for the purposes of carrying out the Works, including the Reef Trust Tender Burdekin Applicant Guidelines 2015-2018;
2.2.5.Budgets, application and other communication between the Parties.
- DEFINITIONS
3.1.In this Agreement the following definitions apply:
ABN has the same meaning as it has in section 41 of the A New Tax System (Australian Business Number) Act 1999 (Cth).
Agreement means this Grant Contractand all Schedules to it;
Agreement Material means any Material
a)created for the purposes of this Agreement ;
b)provided or required to be provided to NQ Dry Tropics as part of the Project under this Agreement; or
c)delivered at any time from Material referred to in paragraph a or b above.
Baseline Nitrogen Applied means the average nitrogen used determined by the last three years of nitrogen fertiliser applied to cane crops as specified in Schedule 4.
Business Day
a)for receiving a notice under this Agreement, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
b)for all other purposes, any day that is not a Saturday or Sunday or a national public holiday, and a 'national public holiday' is a Commonwealth public service holiday throughout Australia promulgated in the Commonwealth of Australia Gazette.
Commencement Date means the date on which this Agreement is executed by the parties, or if not executed by the parties on the same date, means the date this Agreement is signed by the last party to do so.
Completion Date means the date specified in Schedule 1.
Confidential Informationisinformation that is by its nature confidential; and
a)is designated by a party as confidential; or
b)a party knows or ought to know is confidential,
but does not include:
c)information which is or becomes public knowledge other than by breach of this Agreement or any other confidentiality obligation.
Conflict of Interest any circumstance in which the Proponent or any of the Proponent’s Personnel has an interest (whether financial or non-financial) or an affiliation that is affecting, will affect, or could be perceived to affect, the Proponent’s ability to perform the Services, or its obligations under this Agreement, fairly and independently.
Deliverablemeans any Agreement Material or other item to be supplied by the Proponent under this Agreement.
Deliverable Submission Date means the completion dates stipulated in Schedule 3 of this Agreement.
Department means the Commonwealth of Australia as represented by the Department of the Environment or any other Agency that administers this Agreement from time to time.
Farm means the farm or farms identified in Schedule 4, within the Burdekin Dry Tropics Natural Resource Management region where the Project will be undertaken.
Force Majeure Event means acts of God, cyclone, flood, severe storms, fire, accident or civil commotion.
Foreign Computer means a hard disk or other similar device affixed to a computer that is not the property of NQ Dry Tropics.
Grant Contractmeans this contract between NQ Dry Tropics and Proponent for the provision of Grant Funds to the Proponent by NQ Dry Tropics in return for undertaking the activities described in Part A.
Grant Funds or Grant Funding means funding provided to NQ Dry Tropics by the Department for for the purposes of NQ Dry Tropics then providing Grant Funding to the Proponents to undertake activities in accordance with this Agreement.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Insolvency Event in respect of a party means:
a)if the party makes an assignment of its estate for the benefit of creditors or enters into any arrangement or composition with its creditors; or
b)if the party suffers any execution against its assets which has or will have an adverse effect on its ability to perform this Agreement; or
if the party is an incorporated entity:
a)being insolvent; or
b)an administrator, liquidator, provisional liquidator, receiver, manager or controller under the Corporations Act 2001 (Cth) being appointed to the party; or
c)an order being made for the winding up of the party; or
if the party is an individual:
a)being bankrupt; or
b)entering into a scheme of arrangement with creditors; or
c)a mortgagee’s or a chargee’s agent being appointed.
Intellectual Property Rights means all intellectual property rights, including the following rights:
a)copyright, patents, rights in circuit layouts, trademarks, designs, trade secrets, know how, domain names and any right to have confidential information kept confidential;
b)any application or right to apply for registration of any of the rights referred to in paragraph (a); and
c)all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere,
whether or not such rights are registered or capable of being registered.
Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth, or a local government.
Loss or Losses meansliabilities, expenses, losses, damages and costs (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a party).
Material means anything in relation to which intellectual Property rights arise.
Moral Rights include the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work, and the right not to have authorship of a work falsely attributed, as defined in the Copyright Act 1968 (Cth).
Milestone means any fixed date to be met by the Proponent in performing any of the Deliverables under this Agreement as specified in Schedules 3.
Minimum Standards of Management Practice means the Minimum Standards of Management Practice as defined in Appendix 3 of the Reef Trust Tender Burdekin Applicant Guidelines 2015-2018.
NQ Dry Tropics means NQ Dry Tropics Ltd, ABN 18 101 770 601 trading as NQ Dry Tropics.
Personnel in relation to a party, any natural person who is an employee, officer, agent or professional adviser of that party or, in the case of the Proponent, of a subcontractor.
Pre-existing Material any Material, other than Agreement Material, which is created before the Commencement Date and made available by a party for the purpose of this Agreement, on or following the Commencement Date, and includes:
a)error corrections or translations to that Material; and
b)modifications or derivatives of that Material where such modification or derivative work cannot be used without infringing the Intellectual Property Rights in the underlying Material.
Projectmeans the Reef Trust Tender - Burdekin delivered through the Australian Government Reef Trust.
Project Objectives means the following objectives
a)long-term reduction in anthropogenic end of catchment dissolved inorganic nitrogen (DIN) loads generated from the Burdekin;;
b)increased engagement, participation and uptake of improved nitrogen management practices in the Burdekin sugarcane industry; and
c)cost-effective DIN emissions abatement.
Project Activitymeans the project and obligations described in Schedule 3 and schedule 4.
Project Activity Area means the area (or areas) identified in Schedule 4.
Proponent means a party to the Agreement whose details are set out in Schedule 1. For the purposes of this Agreement the term Proponent also includes the Proponent’s agents and its officers, including subcontracts and volunteers.
Proposed Nitrogen Application means the proposed nitrogen application set by the Proponent and specified in Schedule 4.
Records means all material including but not limited to books, documents, information, computer software, equipment, and data stored by any means disclosed, or made available, by NQ Dry Tropics to the Proponent in connection with the performance of this Agreement.
Schedule means a schedule to this Agreement.
Secret and Sacred Material means any information or knowledge of special religious, spiritual or customary significance considered to be secret, exclusive or restricted by an Aboriginal person or according to Aboriginal Tradition (as defined in section 3 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth));
Services Agreement means the Services Agreement for the provision of Services in relation to the Reef Trust Tender Burdekin between the Commonwealth of Australia as represented by the Department of the Environment and NQ Dry Tropics. .
Smartcane BMP means an industry best practise system for cane growing (
Specified Acts
a)failing to attribute or falsely attributing the authorship of any Agreement Material, or any content in the Agreement Material (including without limitation literary, dramatic, artistic works and cinematograph films within the meaning of the Copyright Act 1968 (Cth));
b)materially altering the style, format, colours, content or layout of the Agreement Material and dealing in any way with the altered Agreement Material;
c)reproducing, communicating, adapting, publishing or exhibiting any Agreement Material; and
d)adding any additional content or information to the Agreement Material.
WGE Act means the Workplace Gender Equality Act 2012 (Cth).
Workplace Health and Safety Legislation means the Workplace Health and Safety Act 2011 (Cth) and Workplace Health and Safety Act (Qld).
Works means the works (if any) to be carried out by the Proponent as part of the Deliverables.
3.2.Unless the context otherwise requires:
3.2.1.clause headings are not to be used as an interpretation aid
3.2.2.words in the singular include the plural and words in the plural include the singular according to the requirements of the context; and
3.2.3.a reference to a clause or a Schedule is a reference to a clause or a Schedule of this Agreement.
- TERM
4.1.This Agreement will start on the Commencement Date and end on the Completion Date unless terminated earlier in accordance with the terms of this Agreement.
- CONDUCT OF THE PROJECT
5.1.In consideration for the provision of the Grant Funding, the Proponent must perform the Project Activity:
5.1.1.consistently with, and in furtherance of, the Project Objectives;
5.1.2.so as to meet the agreed Proposed Nitrogen Application; and
5.1.3.so as to meet the Milestones set out in Schedule 3.
- THE PROPONENT
6.1.The Proponent acknowledges and agrees:
6.1.1.to improve its nitrogen management practice from its nominal Baseline Nitrogen Applied to its Proposed Nitrogen Application for the duration of the Project Activity;
6.1.2.the Project Activity and Projectare not aimed at reducing crop yield.
- OBLIGATIONS OF THE PROPONENT
7.1. In carrying out the Proponent’s obligations under this Agreement the Proponent must:
7.1.1.act in accordance with all relevant Laws;
7.1.2.act in accordance with any Commonwealth policies as notified to it by the Department or NQ Dry Tropics ;
7.1.3.not to bring NQ Dry Tropics or the Department into disrepute;
7.1.4.act in accordance with directions from NQ Dry Tropics as issued from time to time (if any);
7.1.5.act so as to deliver the Project Activity and meet all reporting requirements in accordance with the requirements of this Agreement;
7.1.6.act otherwise in accordance with the provisions of this Agreement;
7.1.7.act reasonably in performing their obligations and exercising its rights;
7.1.8.diligently perform its obligations and work in a collaborative manner with NQ Dry Tropics and the Department;
7.1.9.provide the Deliverables and complete the Project Activity to the standard and in the manner, frequency, quantity and at the times specified in Schedule 3;
7.1.10.prior to commencement of the Project Activity, obtain all approvals (if any) required for the purposes of undertaking the Project Activity;
7.1.11.notify NQ Dry Tropics, in writing, immediately if it becomes aware, at any point, that it may not be able to perform the Deliverables and complete the Project Activity in accordance with Schedule 3 and Schedule 4;
7.1.12.understand the requirements and obligations of this Agreement, act professionally at all times and exercise skill, care and diligence in performing the Project Activity;
7.1.13.ensure that the Deliverables specified in Schedule 3 comply with the standards and specifications (if any) set out in Schedule 3 and / or Schedule 4; and
7.1.14.host on farm activities to promote the project outcomes to other land managers.
7.2.Where specified in the Schedules, NQ Dry Tropics will provide the specified assistance to the Proponent.
- FUNDS
8.1.The Proponent will perform the Project Activity in consideration for the payment of the Grant Funding in accordance with Schedule 2.
8.2.Notwithstanding the withholding or suspension of the payment of Grant Funding, by the Departmentto NQ Dry Tropics under the Services Agreement, the Proponent must continue to perform its obligations under this Agreement, unless otherwise agreed in writing by NQ Dry Tropics.
8.3.The Proponent will not be entitled to be paid for any part of the Project Activity which NQ Dry Tropics has determined (in its absolute discretion) as not having been performed in accordance with this Agreement or to the standard set out in this Agreement.
8.4.The Proponent will promptly perform, or perform again, any part of the Project Activity determined as not being performed in accordance with this Agreement and NQ Dry Tropics may, without limiting any other right it may have, defer payment for that part of the Project Activity until NQ Dry Tropics has determined that the relevant Project Activities have been performed, or performed again, in accordance with this Agreement.
- PAYMENT
9.1. The Proponent will receive Grant Funding as specified in clause 8.
9.2.Payments of Grant Funding as specified in Clause 8.1 and Schedule 2 will be subject to:
9.2.1.the continued allocation of Grant Funding by the Department to NQ Dry Tropics under the Services Agreement;
9.2.2.the completion of the activities and acceptance by NQ Dry Tropics of all Deliverables as set out in Schedule 3, to the satisfaction of NQ Dry Tropics; and
9.2.3.NQ Dry Tropics’ receipt of a correctly rendered invoice from the Proponent.
9.3.Upon receipt of an invoice, NQ Dry Tropics may require the Proponent to provide additional information to assist NQ Dry Tropics to determine whether or not an amount is payable.
9.4.NQ Dry Tropics will pay the Proponent the relevant part of the Funds by electronic transfer into the account nominated by the Proponent within twenty (20) Business Days of the later of:
9.4.1.the date on which the relevant Milestone is complete;
9.4.2.the date on which NQ Dry Tropics receives from the Proponent a correctly rendered invoice or “Statement by a Supplier” form for payment of the relevant part of the Grant Funds;
9.4.3.the date on which NQ Dry Tropics completes a review of the Project Activity for the purpose of determining the value of the Works;or
9.4.4.the date when the Grant Funds are received by NQ Dry Tropics from the Department.
9.5.For the purposes of this clause 9, a correctly rendered invoice is an invoice:
9.5.1.in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘GST Act’) in relation to any taxable supply made by the Proponent to NQ Dry Tropics under this Agreement;
9.5.2.wherein the amount claimed in the invoice is due for payment and is correctly calculated in accordance with this Agreement; and
9.5.3.which correctly identifies the Project Activities or Milestones performed during the period to which the invoice relates.
9.6.NQ Dry Tropics will notify the Proponent within 14 days after receipt of an invoice found not to be correctly rendered.
9.7.If an invoice is found, after NQ Dry Tropics has paid the invoiced amount to the Proponent, not to have been a correctly rendered invoice, NQ Dry Tropics will
9.7.1.notify the Proponent who will promptly provide additional information or a correctly rendered invoice pursuant to clause 9.3 above; or
9.7.2.deduct any amount owed to NQ Dry Tropics from the next invoiced payment or, if no other payment is due to the Proponent pursuant to this Agreement, recover the amount from the Proponent as a debt due to NQ Dry Tropics.
9.8.Payment of Grant Funds to the Proponent will not constitute an admission by NQ Dry Tropics that any of the Project Activities have been performed in accordance with this Agreement.
9.9.The Proponent warrants that it has an ABN, which it has correctly quoted to NQ Dry Tropics.
9.10.The Proponent must:
9.10.1.immediately notify NQ Dry Tropics of any changes to the Proponent’s GST status or ABN; and
9.10.2.supply proof of its GST status, as and when requested by NQ Dry Tropics.
- CONFLICT OF INTEREST
10.1.The Proponent warrants that, to the best of its knowledge after making diligent inquiry, at the date of signing this Agreement no Conflict of Interest exists or is likely to arise in the performance of its obligations under this Agreement.
10.2.Where theProponent identifies an actual, apparent, or potential Conflict of Interest exists or risk of a Conflict of Interest might arise during the term of this Agreement (without limitation, because of work undertaken for any person other than NQ Dry Tropics), the Proponent must inform NQ Dry Tropics in writing immediately.
10.3.The Proponent will take all reasonable measures to ensure that its employees, agents and subcontractors do not engage in any activity or obtain any interest which is in conflict with the undertaking of the Project Activity with NQ Dry Tropics fairly and independently. The Proponent will immediately give notice of any Conflict of Interest relating to the activities or interests of any of its employees, agents or sub-contractors to NQ Dry Tropics.
10.4.If NQ Dry Tropics is given notice of a Conflict of Interest pursuant to clause 10.1 or 10.2, NQ Dry Tropics may proceed in accordance with clause 19 to terminate this Agreement.