Organisations Information Kit
Standard Funding Agreement
The Standard Funding Agreement is the contract used to fund services provide by community organisations by the ACT Government. Below is a web-based version of the agreement, with explanatory comments to help you understand what it means.
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Funding: The Standard Funding Agreement
Contents: Main Body of the Standard Funding Agreement
Preliminary
This AGREEMENT is made the
day of
month,
year
BETWEEN:
AUSTRALIAN CAPITAL TERRITORY, a body politic established under the
Australian Capital Territory (Self-Government) Act 1988 (Cth) represented by Department or agency specified in
Item 1 Schedule 1 ("Territory")
AND:
The person, association or corporation specified in
Item 2 Schedule 1 ("Organisation").
BACKGROUND
A. This Agreement is within the framework of "Community Sector Funding Policy" (as amended or superseded from time to time) and recognises that the delivery of Services to the community is best achieved through effective relationships between government agencies and organisations in the community sector that are delivering the Services.
B. The parties to this Agreement commit to negotiating and working together in good faith in the spirit of collaboration and cooperation to achieve the best possible outcomes for Service Users and the parties, and in particular in fulfilling their obligations under this Agreement the parties will:
(1) communicate in a manner that shows mutual respect; and
(2) observe the spirit of the "Social Compact" (as amended or superseded from time to time) between ACT government and the community sector.
[Comment: Point B is an important inclusion because there was nowhere in earlier versions of the contract that explained a general intention for the agreement. Now the relationship is defined in terms of a partnership.
This recognises that if in delivering services you need to think about a cooperative relationship and if there are things that you think the other party would need to know in order to be able to do the things that they're expected to do, then you should tell them. You are both in the business of producing good outcomes to the same set of people. This approach will take some time to bed down; we are only starting to understand how powerful this type of tool can be in an agreement.]
C. This Agreement seeks to focus on the achievement of agreed service outcomes and/or outputs for Service Users and also makes provision with respect to:
(1) the transparency of funding and service provision processes;
(2) accountability and responsibility of the Territory and the Organisation in the application and use of public funds; and
(3) principles, standards and values underpinning the delivery of the Services to Service Users.
D. The Territory and the Organisation have agreed to the funding and provision of the Services on the terms and conditions of this Agreement.
NOW IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires:
"ABN Act" means
A New Tax System (Australian Business Number) Act 1999 (Cth);
"Agreement Material" means Material created or in any way brought into existence wholly of partly with Territory funds for the purpose of performing the Services, and any copy or representation thereof and does not include Territory Material;
"Assets" means all items of equipment, furniture, vehicles, buildings, real property and leasehold improvements, which:
(1) are specified in
Item 1 Schedule 5; or
(2) have a value of $3000.00 or more and are purchased, leased or hired, wholly or partly with the Funding Amount.
[Comment: See also clause 5 - particularly 5.3(2); clause 11; and Schedule 5]
"Funding Amount" means the sums to be paid by the Territory as specified in
Schedule 4 for the provision of the Services;
"GST" has the same meaning as it has in the GST Act;
"GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
"Issue" means a difference, question or dispute that arises between the parties in relation to this Agreement or the Services;
"Material" means all documents, posters, literature, brochures, booklets, publications, audio or video recordings, Internet or other electronic representation and any other educational, publicity or other item or representation in any form;
"Outcomes" means the outcomes specified in
Item 2 Schedule 2;
"Outputs" means the outputs specified in
Item 3 Schedule 2;
"Performance Indicators" means the indicators specified in
Item 4 Schedule 2;
"Performance Requirements" means the requirements specified in
Item 5 Schedule 2;
"Service" or
"Services" means the services specified in
Item 1 Schedule 2;
"Service User" means the user or recipient of the Services;
"Territory" means:
(1) when used in a geographical sense, the Australian Capital Territory; and
(2) when used in any other sense, the body politic established by section 7 of the
Australian Capital Territory (Self-Government) Act 1988 (Cth);
"Territory Material" means:
(1) all Material provided by the Territory to the Organisation for purposes of this Agreement; and
(2) all Material specified in
Item 7 Schedule 2 and any copy or representation thereof.
1.2 Unless otherwise required by the context, the further definitions contained in
Item 3 Schedule 1 apply to this Agreement.
1.3 In this Agreement, unless the context otherwise requires:
(1) any specified provision of this Agreement will be construed as a reference to that provision as amended, varied or substituted in writing from time to time,
(2) words importing a gender include the others; words in the singular number include the plural and vice versa; and references to legislation or to provisions in legislation include references to amendments or re-enactments of them and to all regulations and instruments issued under the legislation;
(3) business day includes any day other than a Saturday, Sunday or public holiday in the Territory; and
(4) clause headings are for convenient reference only and do not affect interpretation.
1.4 Any term or condition of this Agreement which applies to more than one person, will apply to all of them jointly and each of them individually.
2. Duration of Agreement
This Agreement is for the period specified in
Item 3 Schedule 1 as the "Agreement Period" unless varied or terminated sooner in accordance with the terms of this Agreement.
[Comment: this tells you how long the agreement will last. Duration is a matter of government policy and moving from a year by year model to a three year model is a good thing for the community sector as it provides much more certainty.]
3. The Services
3.1 The Organisation must provide the Services for the Agreement Period and in providing the Services must:
(1) achieve the Outputs specified in
Item 3 Schedule 2;
(2) comply with the Performance Requirements specified in
Item 5 Schedule 2;
(3) provide the reports specified in
Schedule 3.
3.2 In the purchase and provision of the Services, the parties will ensure that the Services are delivered in a manner which recognises the diversity of needs of people in the Territory and in a manner which promotes fairness and opportunity for Service Users of diverse backgrounds and abilities so that they can participate fully in the economic, social and cultural life of the Territory.
[Comment: What the organisation has to do is found in a combination of clauses. These are in this clause 3, then clause 5 and also Schedule 2. The core of what an organisation has to do is to provide the services. This is supported by the accountability mechanisms which are what you report against in Schedule 3.]
4. Funding Amount, Assets and GST
4.1 Subject to the Organisation providing the Services and complying with all of its contractual obligations, the Territory will pay the Funding Amount to the Organisation at the times and in the manner set out in
Schedule 4.
4.2 The parties acknowledge and agree that the Funding Amount payable by the Territory for the Services, is based upon the Territory's and/or the Department's policies and level of budgetary allocation by the Territory on the date this Agreement commences and that a significant change in policy or a reduction of the allocation in a subsequent Territory budget will entitle the Territory on a reasonable basis and in a reasonable manner to revise the quantity and/or level of the Services specified at the commencement of this Agreement.
4.3 The provisions in
Schedule 5 will apply in respect of Assets including as applicable, the ownership, maintenance, insurance and other matters concerning Assets.
GST - ABN and GST Registration
4.4 The Territory will:
(1) if the Organisation:
(a) is registered in the Australian Business Register under the ABN Act ("ABN registration"), and
(b) is registered under the GST Act ("GST registration"); and
(2) if the Funding Amount specified in
Item 1 Schedule 4 does not include GST,
pay to the Organisation an amount equal to the GST under the GST Act lawfully payable by the Organisation in respect of the provision of the Services to the extent that this constitutes a taxable supply for purposes of the GST Act.
4.5 Each party acknowledges that it has GST registration on the date this Agreement is entered into, and unless otherwise agreed, the parties agree that:
(1) the Territory may issue recipient created tax invoices (where "recipient created tax invoice" has a meaning the same as it has in the GST Act) in respect of the supply of the Services;
(2) the Organisation will not, if the Territory issues recipient created tax invoices, issue tax invoices in respect of the supply of the Services for the purposes of the GST Act.
GST - ABN Registration but no GST Registration
4.6 Where the Organisation has ABN registration but does not have GST registration, the Funding Amount will not include any amount on account of GST and the Territory is not liable to pay any further amount in relation to GST to the Organisation.
GST - No ABN Registration and no GST Registration
4.7 Where the Organisation has no ABN registration and no GST registration:
(1) the Funding Amount will not include any amount on account of GST;
(2) the Territory will deduct from the Funding Amount such amounts as it is required by law to deduct; and
(3) the Territory is not liable to pay any amount on account of GST to the Organisation.
Warranties and Notifications
4.8 The Organisation warrants that:
(1) for purposes of clause 4.4(1)(a), 4.5 and 4.6, it has ABN registration; and
(2) for purposes of clause 4.4(1)(b) and 4.5, it has GST registration.
4.9 The Organisation will, if requested by the Territory, produce satisfactory evidence of its ABN registration and GST registration within 14 days of the request.
4.10 Each party must notify the other if:
(1) its registration in respect of either or both the ABN or the GST, pursuant to the GST Act ceases, or if, not having been so registered on the date of this Agreement, becomes registered; or
(2) it ceases to satisfy any of the requirements of rulings, or determinations under section 29-70 of the GST Act, issued by the Australian Taxation Office, or the Commissioner for Taxation, in respect of recipient created tax invoices.
5. Organisation's Obligations
5.1 The Organisation will at the request of the Territory and within such time as is agreed by the parties or, if no agreement has been reached after 2 weeks of any request, within such period of time specified in a written notice (which provides reasons for access) from the Territory allow the Territory, its employees and agents to enter onto the Premises of the Organisation:
(1) to inspect and copy all records and documentation, of a financial nature or otherwise, relating to the Services but not including any Service User records; and/or
(2) to inspect the operation and progress of provision of the Services as appropriate having regard to the privacy of the Service Users.
5.2 Having regard to the interest or protection of any Service User and to the circumstances of any request, the Organisation may require the Territory not to permit a Territory employee of a nominated gender to enter the Premises.
[Comment: The Territory has the right to enter premises and to look at an organisation's books. It is part of the accountability package. This is usually only resorted to if the government thinks that things are going off the rails for the organisation. There are limits to what the government can do:
- they must give written notice about coming;
- they must give reasons for why they want to come in; and,
- they do not have access to confidential information or information covered by privacy principles.
The agreement also says that the organisation can request a person of a specific gender to come and do the inspection.]
Insurances and Indemnities
5.3 From the commencement of the Agreement Period the Organisation will effect and maintain all insurance required to be effected by it by law and the following:
(1) the insurance policies specified in
Item 1 Schedule 6 (unless otherwise approved by the Territory in writing);
(2) appropriate and adequate insurance over Assets (including, where relevant, comprehensive motor vehicle insurance); and
(3) adequate insurance to cover the Organisation's volunteers,
and will, on execution of the Agreement, on the renewal of any policy and on other occasions within a reasonable time of the Territory's request, produce satisfactory evidence of currency or renewal of insurance policies to the Territory.
5.4 (1) Except to the extent that the Territory caused the relevant loss, damage or injury, the Organisation will be responsible for and will indemnify the Territory, its employees and agents against liability in respect of all claims, costs and expenses and for all loss, damage, injury or death to persons or property caused by the Organisation, its employees or agents in connection with the provision of the Services.
(2) The amount of all claims, loss, damage, costs and expenses the subject of the indemnity in clause 5.4(1) will be made good at the Organisation's expense.
[Comment: This says that your organisation must indemnify the ACT government in certain events. It is about a circumstance which is very unlikely to arise; that is, your organisation does something which causes a loss to be suffered by, or a claim to be made against, the ACT government.
An example would be if the actions of your organisation resulted in someone suing the ACT government. This clause says you will indemnify the ACT government in that event.
One response would be to take out insurance in order to be sure that your organisation would have the means to indemnify the government if such an event occurred. However, given the difficulties in obtaining affordable insurance, and given the low risk of such an event occurring, organisations may be justified in not obtaining this type of insurance.]
Organisation Staff
5.5 The Organisation acknowledges that it is the employer of persons and may be supported by volunteers whose salary, wage or associated costs is paid from the Funding Amount and will ensure those employees and volunteers ("staff") are:
(1) appropriately qualified and skilled; and
(2) provided with appropriate working conditions, having regard to but not limited to:
(a) employing employees under applicable Commonwealth or Territory laws and/or certified agreements or awards,
(b) providing adequate support, training and debriefing and effectively directing staff to enable them to effectively perform their duties.
Service User Satisfaction
5.6 The Organisation will:
(1) institute procedures for receiving feedback and resolving complaints by Service Users about the Services; and
(2) advise Service Users and other persons with a relevant interest of the procedures available for the referral of feedback and complaints in relation to the receipt of the Services,
as specified in
Schedule 2.
Provision of Information
5.7 The Organisation will, upon request of the Territory pursuant to clause 6.4, provide to the Territory requested information relevant to the Services.
[Comment: Another accountability mechanism. This is part of the Territory's right to see how the money is being spent. There can be a specific request for information, over and above the existing reporting requirements, and the Territory must give reasonable time to comply with the request. See also Clause 6, particularly 6.4]
5.8 The Organisation will as soon as practicable notify the Territory in writing of any of the following:
(1) any change in the Organisation's address and its contact details;
(2) any material change or proposed change to the Organisation's constitution and rules or memorandum and articles of association; and
(3) any change in the chair of the board, public officer, chief executive or any equivalent positions or executive management of the Organisation.
5.9 The Organisation must immediately notify the Territory in writing of any of the following:
(1) any action or proposed action relating to:
(a) the winding up or liquidation of the Organisation,
(b) the appointment of a receiver or manager, or
(c) any company arrangement between the Organisation and its creditors; and
(2) any other event or circumstance which might reasonably affect the provision of the Services in accordance with this Agreement.
5.10 The Organisation undertakes that all information provided from time to time by the Organisation to the Territory in relation to this Agreement is true and complete in all material respects on and from the date of the information being provided. The Organisation will notify the Territory in writing of any material change to such information as soon as is practicable.
Quality Standards
5.11 The Organisation will use its best endeavours to implement quality improvement processes and measures, including any specified in
Item 6 Schedule 2 and as recommended by the Territory from time to time.
Special Conditions
5.12 The Organisation will comply with any Special Conditions specified in
Schedule 6.
6. Territory's Obligations
6.1 The Territory will:
(1) pay the Funding Amount, or instalments of it, to the Organisation within the terms of this Agreement;
(2) promote linkages among its agencies and programs relevant to the Services; and
(3) act promptly and in good faith in the resolution of any questions, issues or disputes that may arise during the course of this Agreement.
6.2 If the costs for the Organisation of delivery of the Services increases substantially due to necessary cost increases outside the control of the Organisation, the Organisation may request in writing a joint review of the Services provided under this Agreement, and the Territory will consider and respond to this request. The parties may, as a result of any joint review, agree in writing to vary any of the Outputs, Performance Indicators or Performance Requirements.
6.3 The Territory will, as soon as practicable after receipt of a report pursuant to
Schedule 3, provide to the Organisation a reasonable level of feedback concerning the sufficiency of the report.
6.4 The Territory may request the Organisation to provide it with information relevant to the Services that is reasonable having regard to the circumstances and any request will:
(1) be in writing;
(2) specify the information required, which may include but is not limited to:
(a) information about guidelines or rules provided for Service Users and/or about the Organisation,
(b) information required by a Minister or Auditor General,
(c) fees, if any, charged by the Organisation to Service Users, and
(d) all financial records and documents relating to the Services; and
(3) specify a reasonable time frame in which the Organisation must provide the information.
[Comment: the information described in this clause is additional to the regular reporting specified in Schedule 3.]
6.5 The Territory agrees to commence communications with the Organisation in good faith, at least 3 months prior to the expiration of this Agreement, concerning the Territory's intentions in relation to the continuation or otherwise of funding of the Services and the parties acknowledge that no representations or obligations will arise from those communications to enable frank and open communication.
[Comment: this is a very important clause, not because it binds either of the parties to any further agreement, (it can't and doesn't) but because it provides the best possible circumstances for continuity of funding and services or, if necessary, helps allow the organisation to prepare for cessation of funding.]
7. Conflict of Interest
7.1 The Organisation warrants to the Territory that at the date of entering into this Agreement no undisclosed conflict of interest exists or is likely to arise in its provision of the Services or in the performance of its obligations under this Agreement whether by virtue of the position or conduct of any of its officers or members or otherwise.
7.2 If a conflict or risk of conflict of interest specified in clause 7.1 is subsequently discovered to have existed or arises or is likely to arise during the Agreement Period, the Organisation will:
(1) notify the Territory immediately in writing of that conflict or risk; and
(2) comply with such course of action as the Territory requires of the Organisation for the purpose of resolving the conflict.
8. Treatment of Personal and Agreement Information
[Comment: This is a very long and elaborate clause which should really just be common sense. Personal information and confidential information should not be disclosed. This is essentially what Clause 8 says. These obligations are imposed by the law anyway, even if there was no clause in this agreement. You would be under these obligations, either under the Privacy Act or under the general law of confidentiality. It's mostly common sense, but if in any doubt then don't disclose.
Note: discussing a case with a close friend, although commonly done, is a breach of confidentiality requirements.]
8.1 In this clause:
(1)
"personal information" means information or an opinion (including information or an opinion forming part of a database), held, collected, created or otherwise obtained by the Organisation in connection with this Agreement, whether true or not, and whether recorded in a material form or not, about a natural person, whether a Service User or not, whose identity is apparent, or can reasonably be ascertained, from the information or opinion; and
(2)
"Agreement information" means all information relating to the Services or arising from this Agreement which by its nature is confidential or which the Territory notifies to, or agrees with, the Organisation as being confidential but does not include information which is or becomes public knowledge other than by breach of this Agreement.
8.2 The Organisation will:
(1) use personal information only for the purposes of fulfilling its obligations under this Agreement and as legally required;
(2) take all reasonable measures to ensure that personal information is protected against loss and unauthorised access, use, modification, disclosure or other misuse and that only authorised personnel have access to the information;
(3) unless otherwise agreed with the Territory, comply with the Information Privacy Principles set out in section 14 of the
Privacy Act 1988 (Cth) which concern the collection, security, use and disclosure of personal information to the extent that those Principles apply to the Services the Organisation is providing under this Agreement, as if it were a collector or record-keeper as referred to in the Principles;
(4) ensure that any person whom the Organisation enables to have access to any personal information, is made aware of, and undertakes in writing, to observe the Organisation's obligations under this clause 8 and is informed that failure to comply with the undertaking may be a criminal offence and may also lead the Organisation to take disciplinary action against the person if he or she is the Organisation's employee;
(5) immediately notify the Territory of any complaint alleging an interference with the privacy of a Service User or any other person who is affected by the provision of the Services and similarly notify the Territory where the Organisation becomes aware of a breach of clause 8.2(2) or 8.3; and
(6) co-operate with any reasonable requests or directions of the Territory arising from or in relation to the exercise of the functions of the Privacy Commissioner under the
Privacy Act 1988 (Cth), and comply as far as practicable with any reasonable direction of the Territory's Agreement Manager to observe any recommendation of the Privacy Commissioner relating to any acts or practices of the Organisation in relation to the Services.
8.3 The Organisation must not:
(1) disclose personal information or Agreement information; nor
(2) transfer personal information or Agreement information outside Australia, or allow any person outside Australia to have access to it;
unless:
(3) the Territory gives its prior written consent to disclosure (which consent may be conditional);
(4) necessary to be disclosed to the extent required for the proper discharge of the Organisation's provision of the Services and having regard for the interests and protection of Service Users;
(5) required to be disclosed for the sole purpose of the Organisation obtaining legal, financial, medical or other relevant advice from suitably qualified persons; or
(6) legally required to be disclosed, in which case the Organisation will immediately notify the Territory when it becomes aware that a disclosure may be required by law.
9. Agreement and Territory Material and Intellectual Property
[Comment: the new intellectual property clause says that the organisation owns any intellectual property that it develops (except if the property is specified in advance as part of the service funding agreement in Item 7 Schedule 2). The agreement requires the organisation to grant a license to the government for use of the property, but ownership of the property remains with the organisation.
The property has been produced with government money but remember that neither the government nor the organisation are profit making enterprises, so there are not likely to be sharks circling looking for profit.
The government can request the use of the intellectual property for commercial purposes, and the agreement then says that the organisation has got to negotiate with the government. The organisation is not obliged to give the intellectual property to the government to use for commercial purposes, but neither is it allowed to "unreasonably" withhold consent.
It is useful to remember that intellectual property is a limited concept. It doesn't protect an idea per se. It must be expressed in a certain way, such as a written form, or be an artistic creation, or be a type of intellectual property that is registered like a patent.
The idea of association between an organisation and a concept or creation (such as a service delivery model or program) is not protected by intellectual property. It can, however, be protected by other areas of the law, for example, misleading conduct under the Fair Trading Act.]
Territory Material
[Comment: As defined at the beginning of the Agreement, Territory material is all material provided by the Territory to the organisation for the purpose of this agreement, and all material specified in Item 7 Schedule 2 intellectual property specified in advance as part of the service funding agreement.
Note; that the categories "Territory Material" and "Agreement Material" are mutually exclusive. Unless material created as part of the service is specified as Territory Material, it will generally be Agreement Material.]
9.1 Title to, and ownership of any intellectual property rights (including copyright) in all Territory Material will vest upon its creation in the Territory and will at all times remain in the Territory.
9.2 The Organisation will ensure that:
(1) Territory Material is only used, copied, supplied, communicated or reproduced, published, performed or adapted in accordance with and for the purposes of, this Agreement; and
(2) on expiration or termination of this Agreement, the Organisation will convey to the Territory all Territory Material.
Agreement Material
[Comment: Agreement material is material that is generated under the agreement, except Territory Material (defined above). In other words the funds from this agreement have been used to generate that material.]
9.3 Title to, and ownership of any intellectual property rights (including copyright) in Agreement Material, will vest upon its creation in the Organisation.
9.4 The Organisation grants to the Territory a free licence (including a right of sublicence) to use, communicate (including make available online or electronically transmit), reproduce and adapt the Agreement Material for any Territory purpose including purposes for the benefit of Service Users and the conduct of the Territory Department or agency administering this Agreement, subject to clause 9.5. The Territory will acknowledge the Organisation's ownership of any intellectual property rights in the Agreement Material in any use of that Agreement Material under this clause 9.4.
9.5 If the Territory proposes to use the Agreement Material for commercial purposes, the Territory will seek the Organisation's prior written consent (which will not be unreasonably withheld) to the commercial use.
9.6 The Territory will notify the Organisation every 6 months in arrears of any substantial uses of the Agreement Material pursuant to clause 9.4.
9.7 Any Material or other information in any form of presentation, produced by the Organisation using the Funding Amount, must acknowledge the contribution of the Territory and where required, that of the Australian Government, including the naming of the relevant government program, if applicable, in the form set out in Item 8 Schedule 2.
10. Resolution of Issues
[Comment: Any dispute in any contract should be sorted out between the parties by sitting down and talking, which is how most disputes are resolved.
Ultimately the government can still stop funds and terminate the agreement if there is a breach or a "compelling reason". That is an absolute last resort. The government has made it absolutely clear that this agreement is a cooperative arrangement and they are not out to trip up community organisations by accusing them of breach of contract.]
10.1 If an Issue arises, then one party may give written notice ("Notice") to the other that an Issue exists, giving details of the Issue in the Notice. Once the Notice is served, the parties will endeavour to promptly resolve the Issue in good faith.
10.2 If the Issue is not resolved within 10 business days of the Notice being served, or such other period as the parties may agree in writing, each party will refer the Issue to a senior executive officer who will endeavour to negotiate to resolve the Issue in a timely manner. The senior executive officer should not be a person who is involved in the day-to-day administration of the Agreement.
10.3 If the Issue is not resolved within 20 business days of the Notice being served, or such other period as the parties may agree in writing, the parties will undertake a mediation or conciliation process before resorting to litigation (except where urgent interlocutory relief is sought). The appropriate process and a suitable and independent mediator or conciliator will be:
(1) as agreed by the parties in writing, or
(2) failing agreement, determined by the chairperson of The Institute of Arbitrators and Mediators Australia, ACT Chapter.
10.4 The parties will use their best endeavours to resolve any Issue within 40 business days of the Notice.
10.5 Unless agreed by the parties in writing no unresolved Issue will entitle the Organisation to suspend the provision of Services.
11. Suspension and Termination
11.1 Without prejudice to any other rights and remedies of the Territory in respect of any breach by the Organisation of this Agreement, the Territory may, upon written notice to the Organisation, suspend payment of any part of the Funding Amount if the Organisation fails in a timely manner to provide to the reasonable satisfaction of the Territory reports or information required under this Agreement.
11.2 If an Issue notified pursuant to clause 10.1, which involves a breach of this Agreement, is not resolved or remedied within the earlier of:
(1) 40 business days of the notice being served pursuant to clause 10.1; and
(2) 20 business days of the issue being referred to a mediation or conciliation phase of the resolution of issues process pursuant to clause 10.3,
the Territory may, without prejudice to any other rights or remedies of the Territory in respect of any breach of the Organisation of this Agreement, immediately by written notice terminate this Agreement in whole or part.
11.3 For the purposes of this clause, "Compelling Reason" means a situation of urgency (including but not limited to substantial non-delivery of the Services or a situation concerning the safety or health of, or harm to, any person including any Service User) that necessitates action to be taken without undertaking or while undertaking a resolution of Issue process pursuant to clause 10.
11.4 Without limiting clause 11.5 and without prejudice to any other rights and remedies of the Territory in respect of any breach by the Organisation of this Agreement, the Territory may, in its absolute discretion, immediately by written notice suspend the parties' respective obligations under this Agreement in whole or in part if there is a Compelling Reason.
11.5 Without prejudice to any other rights and remedies of the Territory in respect of any breach by the Organisation of this Agreement, the Territory may immediately by written notice terminate this Agreement in whole or in part if:
(1) there is a Compelling Reason;
(2) the Organisation becomes insolvent, is wound up, or becomes subject to any form of insolvency administration; or
(3) the Organisation has, or is in the process of having, its registration or incorporation cancelled.
11.6 Both parties may at any time agree in writing to terminate this Agreement.
11.7 Upon termination of this Agreement, the Organisation must immediately:
(1) cease expending the Funding Amount (except such amounts as the Territory agrees in writing can be expended by the Organisation, having regard to the Organisation's pre-existing commitments at the time the termination is notified);
(2) calculate and notify the Territory of any unexpended amount of the Funding Amount; and
(3) pay to the Territory any amount of the Funding Amount remaining unexpended, any interest earned or income derived from the provision of Services not expended.
11.8 Upon termination of this Agreement, the Territory may, in addition to any other rights and remedies of the Territory under law or this Agreement:
(1) cease any further payment of the Funding Amount to the Organisation;
(2) reclaim any amount of the Funding Amount that was not applied in the provision of the Services; and
(3) subject to agreement or direction otherwise under clause 11.9, require the Organisation to refund to the Territory such amount of the Funding Amount as was expended by the Organisation in the purchase of any Assets.
11.9 If this Agreement is terminated, the Organisation may submit to the Territory a proposal about the transfer of the Assets to any other Organisation funded by the program under which the Organisation is funded under this Agreement to enable Service Users to have the benefit of the Assets. If the Territory does not approve the proposal or no proposal is received within 5 business days of termination, the Organisation will transfer the Assets (except any purchased only partly with the Funding Amount) to, or as directed by, the Territory upon the Territory's demand.
[Comment: At the commencement of the agreement any Territory assets must be listed in schedule 5. These are assets which have already been bought with Territory funds. If an item is going to be purchased wholly or partly with Territory funds, and is worth more than $3000, then it is treated as an asset. This doesn't cover every single thing that an organisation has in its office like the microwave or the kettle. It covers substantial things which have been purchased with Territory money.
The significance of designating an asset as a Territory asset is that there are certain obligations. You must maintain and look after it. For example, if the organisation has a car then it must be insured and maintained properly.
It may be that if the agreement comes to an end then the organisation must return the money or the asset. The termination arrangements include making an agreement with the Government that an organisation can hand an asset over to another community organisation for their use. There is some flexibility in the agreement relating to this.
If an asset was purchased only partly with the funding amount, the Territory is not allowed to direct its transfer to another organisation or to the Territory itself. This will help organisations deal with situations where an asset has been purchased with funds from various sources.]
12. Entire Agreement, Variations and No Waiver
[Comment: Any agreement can only be changed if both parties agree, unless it says at the beginning that one party has the right to dictate terms (like banks do with interest rates). An agreed change to the contract can happen in a formal way by sitting down and writing down the change to the agreement; or it can happen informally where the parties have conducted themselves in such a way that a change is obvious.
It's best to get changes in writing.]
12.1 This Agreement comprises the entire agreement between the parties and supersedes any prior representations, negotiations, writings, memoranda and agreements.
12.2 This Agreement may be varied only by the written agreement of the parties.
12.3 Failure or omission by the Territory at any time to enforce or require strict or timely compliance with any provision of this Agreement will not affect or impair that provision in any way or the rights of the Territory to avail itself of the remedies it may have in respect of any such provision.
13. Severance
Any provision of this Agreement that is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability without invalidating the remaining provisions of this Agreement.
14. Compliance with Applicable Laws
14.1 This Agreement will be construed and enforced in accordance with laws applicable in the Territory and the parties submit to the non-exclusive jurisdiction of the courts in the Territory.
14.2 The Organisation will comply, and will ensure it requires each of its employees, agents and contractors to comply, with all laws applicable to it and them in the Territory.
14.3 The Organisation may, in relation to its obligation to comply with the
Discrimination Act 1991, obtain from the Discrimination Commissioner any exemptions under that Act, required by the Organisation in connection with the delivery of the Services. In that event, the Organisation will submit to the Territory any documentation which it may request in order to verify such exemption.
15. Notices
15.1 Any notice to be served by one party to the other will be served by delivering it, posting it by prepaid post or sending it by facsimile to the Territory�s Agreement Manager or the Organisation's Agreement Manager at the relevant address specified in
Item 3 Schedule 1 for each Manager.
15.2 Any notice served in accordance with this clause will be deemed to be received:
(1) if delivered by hand - on the day of delivery;
(2) if posted - three days after the date of posting; or
(3) if transmitted by facsimile - upon production of the transmitting machine's confirmation report unless either that report indicates a faulty or incomplete transmission of it, or within 24 hours of transmission the recipient informs the sender that the transmission was received in an incomplete or garbled form.
[Comment: It is common for agreement managers to communicate by email, but for notices it is important to ensure that communications occur by the means listed here, the intention being to have it in hard copy.]
16. Agreement Managers
The Territory's Agreement Manager and the Organisation's Agreement Manager are as defined in
Item 3 Schedule 1 or as notified in writing from time to time by one party to the other. Each party's Agreement Manager is authorised to represent that party in relation to all matters arising under this Agreement.
17. No Employment, Agency or Partnership
The Organisation will not represent itself and will ensure that its employees do not represent themselves as the employees, agents or partners of the Territory nor will anything contained in this Agreement constitute or be deemed to constitute the Organisation or any of its employees as the employees, agents or partners of the Territory for any purpose. The Organisation will not have authority to bind the Territory in any manner.
18. No Assignment
Subject to any Special Conditions in
Schedule 6, the Organisation will not assign or otherwise deal with its rights and obligations under this Agreement without the prior written consent of the Territory.
19. Continuation of Obligations
The Organisation's obligations under clauses 5.4, 8, 9, 11.7, 11.8 and 11.9 (and any outstanding obligation to provide reports under
Schedule 3) will continue after the expiration or earlier termination of this Agreement.
Schedules
The following pages have annotated web-based versions of the schedules to the Standard Funding Agreement:
Back to
Funding: The Standard Funding Agreement
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