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THIS AGREEMENT is made on the ___3rd___
day of __June____ 2010
BETWEEN:
THE COMMONWEALTH OF AUSTRALIA (ABN
68 706 814 312) represented by the Department of Defence ('Commonwealth')
AND
THE AUSTRALIAN STRATEGIC POLICY INSTITUTE
(ABN 77 097 369 045) of Level 2, Arts House, 40 Macquarie Street, BARTON ACT 2600('ASPI
Limited').
RECITALS
This Agreement is made in the following context:
- The Commonwealth wishes to encourage independent research into and analysis of defence
and security issues relevant to Australia, to increase public awareness of those
issues and to provide a centre of expertise of value to support government decision
making on strategic and defence issues. The government's vision for ASPI, (as expressed
in the 2008 Statement of Expectations from the Minister for Defence) is that “it
will be a high-performing Commonwealth company which provides fresh independent
and non-partisan ideas, and promotes discussion among the public service, academia
and the wider public on Australia's defence and strategic policy choices.”
- The Commonwealth has agreed to provide ASPI Limited with Funding to further the
objects specified in Schedule 1 of this Agreement.
- ASPI Limited has agreed to accept the Funding to further the objects specified in
Schedule 1 of this Agreement.
- This Agreement sets out the terms on which the Commonwealth agrees to provide the
Funding, and ASPI Limited agrees to accept and use the Funding.
OPERATIVE PROVISIONS
In consideration of the mutual promises contained in this Agreement, the Parties
hereby agree as follows:
- DEFINITIONS AND INTERPRETATION
- 1.1 In this Agreement, unless the contrary intention appears:
- 'Agreement' means this document as signed and dated by the Commonwealth and
ASPI Limited, and includes Schedule 1 and any annexures.
- 'Annual Funding Amount' in respect of each full Financial Year means the
amount provided by Defence to ASPI Limited for its research program.
- 'Audited Financial Report' means an audited statement certified by a person
qualified to be a member of a recognised accounting body in Australia.
- 'Background IP' means Intellectual Property, other than Third Party IP, that:
- is in existence at the Commencement Date or is subsequently brought into existence
other than as a result of the performance of this Agreement; and
- is embodied in, or attaches to, the Funding Purposes, or is otherwise necessarily
related to the functioning or operation of the Funding Purposes.
- '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.
- 'Commencement Date' means the date both Parties sign this Agreement, or if
it is signed on separate days, the date on which the last Party to sign this Agreement
does so.
- 'Confidential Information' means information that is by its nature confidential
or the receiving Party knows or ought to know is confidential, but does not include
information which:
- is or becomes public knowledge other than by breach of this Agreement;
- is in the possession of a Party without restriction in relation to disclosure before
the date of receipt; or
- has been independently developed or acquired by the receiving Party.
- 'Constitution' means the Constitution of ASPI Limited.
- 'Contract Manager' means the person for the time being holding or occupying
the position of Assistant Secretary Strategic Policy of the Department of Defence
or the contract manager's nominated delegate in the Department of Defence.
- 'Council' means the directors of ASPI Limited acting collectively under the
Constitution.
- 'Department' means the Department of Defence, or the Commonwealth Department
with primary responsibility for assisting the Minister with portfolio responsibilities
for Defence.
- 'Electronic Communication' has the same meaning as in the Electronic
Transactions Act 1999 (Cth).
- 'Financial year' means a period of twelve months ending on 30 June.
- 'Foreground IP' means Intellectual Property which is created under or otherwise
in connection with this Agreement, other than Third Party IP and, where applicable,
includes, but is not limited to, all Material created under this Agreement that
relates to the Funding and the Funding Purposes.
- 'Funding' or 'Funds' means the amount or amounts payable under this
Agreement by the Commonwealth to ASPI Limited for the Funding Purposes, and excludes
Goods and Services Tax, as defined in the GST Act, where applicable.
- 'Funding Purposes' means the activities described in Schedule 1 to this Agreement.
- 'GST Act' means A New Tax System (Goods and Services Tax) Act 1999
and associated taxation legislation. The expressions "adjustment note", "taxable
supply" and "tax invoice" have the meanings given to those expressions in the GST
Act, and the terms "GST paid" and "GST payable" refer to the imposition of Goods
and Services Tax as required by the GST Act.
- 'Information System' has the same meaning as in the Electronic Transactions
Act 1999 (Cth).
- 'Intellectual Property' or 'IP' means all copyright and all rights
in relation to inventions (including patent rights), registered and unregistered
trademarks (including service marks), registered and unregistered designs, confidential
information (including trade secrets and know-how), and circuit layouts, and any
other rights resulting from intellectual activity in the industrial, scientific,
literary and artistic fields recognised in domestic law anywhere in the world.
- 'Material' includes documents, equipment, software (including source code
and object code), goods, information and data stored by any means including all
copies and extracts of the same.
- 'Member' means a member of ASPI Limited as that term is defined in the Constitution.
- 'Minister' means the Commonwealth Minister with portfolio responsibilities
for Defence.
- 'Party' means a party to this Agreement, and 'Parties' has a corresponding
meaning.
- 'Records' includes documents, information and data stored by any means, and
all copies and extracts of the same.
- 'Material breach' or 'breach…to a material degree' means a serious
or substantial breach of the terms of the Agreement by either party which contravenes
the purpose of the Agreement.
- 'Technical Data' or 'TD' means all technical know-how and information
reduced to material form produced or acquired by ASPI Limited in relation to the
Funding Purposes and includes all data, manuals, handbooks, designs, standards,
specifications, reports, writings, models, sketches, plans, drawings, calculations,
software, source code, software design data, software updates and other items describing
or providing information relating to the Funding Purposes or their operations.
- 1.2 In this Agreement, unless the contrary intention appears:
- headings are for the purpose of convenient reference only and do not form part of
this Agreement;
- words in the singular number include the plural and words in the plural number include
the singular;
- words importing a gender include any other gender;
- words importing persons include a partnership and a body whether corporate or otherwise;
- where the last day of any period prescribed for the doing of an action falls on
a day which is not a Business Day, the action shall be done no later than the end
of the next Business Day;
- a reference to a clause includes a reference to a subclause of that clause;
- a reference to a "dollar", "$", "$A" or AUD means the Australian dollar unless otherwise
stated;
- a reference to an Act is a reference to an Act of the Commonwealth, State or Territory
of Australia, as amended from time to time, and includes a reference to any subordinate
legislation made under the Act;
- any uncertainty or ambiguity in the meaning of a provision of this Agreement will
not be interpreted against a Party just because that Party prepared the provision;
- where any word or phrase is given a defined meaning, any other part of speech or
other grammatical form in respect of that word or phrase has a corresponding meaning;
and
- a reference to a Party includes that Party's administrators, successors, and permitted
assigns.
- 1.3 The Schedule (and annexures and documents incorporated by reference,
if any) form part of this Agreement. In the event of any conflict or inconsistency
between any part of:
- the terms and conditions contained in the clauses of this Agreement;
- the Schedule;
- the annexures, if any; and
- documents incorporated by reference, if any,
then the material mentioned in any one of paragraphs (a) to (d) of this clause 1.3
has precedence over material mentioned in a subsequent paragraph, to the extent
of any conflict or inconsistency.
- TERM
- 2.1 This Agreement commences on 1 July 2010 and, unless terminated earlier,
in accordance with this Agreement, expires on 30 June 2014.
- 2.2 The Parties may agree in writing to extend this Agreement for an
additional period of up to four years.
- PAYMENT
- 3.1 Subject to sufficient funds being available, and compliance by ASPI
Limited with this Agreement, the Commonwealth will provide ASPI Limited, upon receipt
of a correctly rendered invoice, with the Funding at the time and in the manner
specified in Schedule 1 to this Agreement.
- 3.2 Unless otherwise expressly agreed in writing by the Commonwealth,
the Funding specified in Schedule 1 is the maximum amount that the Commonwealth
will be providing to ASPI Limited for the Funding Purposes.
- 3.3 Without limiting the Commonwealth's rights, the Commonwealth may
withhold or suspend any Funding in whole or in part if ASPI Limited is in material
breach of this Agreement.
- MANAGEMENT OF FUNDING
- 4.1 ASPI Limited must carry out the Funding Purposes in accordance with
this Agreement.
- 4.2 The Funding must be expended by ASPI Limited only for the Funding
Purposes.
- 4.3 ASPI Limited must identify the receipt and expenditure of the Funds
separately within ASPI Limited's accounting Records so that at all times the Funds
are identifiable and ascertainable.
- 4.4 ASPI Limited must ensure that the Funds are paid into an account
in ASPI Limited's name, and which ASPI Limited solely controls, with an authorised
deposit-taking institution, and provide the Commonwealth with written details sufficient
to identify this account prior to receipt of any Funds.
- 4.5 ASPI Limited must keep financial Records relating to the receipt
and expenditure of the Funding so as to enable ASPI Limited to comply with any reporting
obligations under this Agreement including but not limited to, those reporting obligations
set out in clause 5.
- 4.6 Any uncommitted funds from a financial year's Funding amount should
be returned to the Commonwealth prior to ASPI Limited signing off its financial
statements for that financial year.
- 4.7 If, at the end of the term of this Agreement or upon earlier termination
of this Agreement, there remains an amount of Funding that has not been expended
in accordance with this Agreement, then ASPI Limited must deal with this amount
as directed in writing by the Commonwealth. Where the Commonwealth directs ASPI
Limited to refund the amount to the Commonwealth, ASPI must do so within 90 Business
Days from receipt of the notice.
- 4.8 Without limiting the Commonwealth's rights set out in clause 4.2
of this Agreement, any Funding paid by the Commonwealth to ASPI Limited under this
Agreement must be refunded by ASPI Limited to the Commonwealth if:
- the purpose for which the Funding is provided ceases to exist for any reason; or
- ASPI Limited breaches any of the conditions of this Agreement to a material degree,
and which is not capable of remedy.
- 4.9 Any amount owed to the Commonwealth will be recoverable by the Commonwealth
in a court of competent jurisdiction as a debt due to the Commonwealth by ASPI Limited.
- RECORDS AND REPORTS
- 5.1 ASPI Limited must make full and accurate Records of receipt and
expenditure of the Funding and retain the Records for a period of no less than seven
years after the expiration or termination of this Agreement.
- 5.2 ASPI Limited must provide to the Commonwealth reports, at the times
and in the manner stated in clauses 5.5, 5.6 and 5.7 of this Agreement, of receipt
and expenditure of the Funding, and ASPI Limited's progress in undertaking the Funding
Purposes.
- 5.3 The Commonwealth will be entitled, in addition to any other right
it may have, to defer payment of any Funding until ASPI Limited has provided to
the Commonwealth the reports stated in clauses 5.5, 5.6 and 5.7 of this Agreement.
- 5.4 ASPI Limited will continue to develop additional funding sources
and continue to report to Government on its additional sources.
- 5.5 ASPI Limited agrees to provide the Commonwealth:
- Such reports as ASPI Limited may be required to prepare pursuant to the Commonwealth
Authorities and Companies Act 1997 or the Corporations Act 2001;
- Any other information that the Contract Manager may from time to time notify to
ASPI Limited in writing that it requires.
- 5.6 Where ASPI Limited is required by the Commonwealth Authorities
and Companies Act 1997 (the CAC Act) to provide a document to its responsible
Minister, ASPI Limited must also provide a copy of the document to the Contract
Manager.
- 5.7 The timeframe for delivery of any document under this clause is
the same timeframe by which ASPI Limited must provide any documents to its responsible
Minister under the CAC Act.
- REVIEWS
- 6.1 When considering any extension of this Agreement under Clause 2.2,
the Commonwealth may, starting in 2013, review the future of ASPI Limited in light
of the development of the National Security College at the Australian National University.
- 6.2 ASPI Limited must supply any and all information in its possession
or control requested by a review team, (collectively, or members individually) for
the purposes of the review.
- 6.3 ASPI Limited will be required to respond to any recommendations
made through the review, and to negotiate with the contract manager appropriate
steps to address any recommendations.
- INTELLECTUAL PROPERTY
- 7.1 Nothing in this Agreement affects the ownership of Background IP.
- 7.2 Subject to any specific arrangements to the contrary, Intellectual
Property in all Material developed by ASPI Limited using the Funds shall vest in
ASPI Limited.
- CONTROLS
- 8.1 ASPI Limited shall not act contrary to its Constitution, and in
particular to the objects and powers of its Constitution.
- 8.2 Subject to clause 8.3, ASPI Limited shall not:
- pass any resolution or do any act or thing the effect of which results, or will
result, in a change in the identity of the directors;
- pass any resolution to wind up ASPI Limited;
- pass any resolution or take any action the effect of which has or will have the
result that ASPI Limited is amalgamated with any other person;
- pass any resolution or take any action the effect of which has or will have the
result that the Commonwealth, if a member of ASPI Limited, ceases to be a member;
or
- pass any resolution or take any action the effect of which results, or will result
in a change to the objects and powers of ASPI Limited;
without first notifying the Commonwealth in writing and obtaining the consent of
the Commonwealth, which may be given or withheld in the absolute discretion of the
Commonwealth.
- 8.3 ASPI Limited will not be in breach of any provision of this clause
8 where ASPI Limited is required to act, or refrain from acting, by operation of
law.
- ASSETS
- 9.1 For the purpose of this clause “asset” includes personal and real
property, and Intellectual Property.
- 9.2 Ownership of any asset purchased by ASPI Limited wholly or partially
with the use of the Funds shall be vested in ASPI Limited.
- 9.3 ASPI shall not use the Funds as security for the purpose of obtaining
commercial loans.
- COMPLIANCE WITH LAW
- 10.1 ASPI Limited acknowledges its obligations, in carrying out this
Agreement and its activities, to comply with:
- all relevant legislation of the Commonwealth (particularly the Crimes Act 1914,
Racial Discrimination Act 1975, Sex Discrimination Act 1984, and Disability
Discrimination Act 1992), or of any State, Territory or local authority;
and
- any obligations it has under the Equal Opportunity for Women in the Workplace
Act 1999.
- CONFLICT OF INTEREST
- 11.1 ASPI Limited warrants that, to the best of its knowledge after
making diligent inquiry, at the date of commencement of this Agreement no conflict
with the interests of the Commonwealth exists or is likely to arise in the performance
of this Agreement.
- 11.2 If, during the term of this Agreement a conflict of interests arises,
or appears likely to arise, ASPI Limited agrees to:
- notify the Commonwealth immediately in writing;
- make full disclosure of all relevant information relating to the conflict; and
- take such steps as the Commonwealth may reasonably require to resolve or otherwise
deal with the conflict.
- 11.3 If ASPI Limited does not notify the Commonwealth or is unable or unwilling
to resolve or deal with the conflict as required, the Commonwealth may terminate
this Agreement for default under clause 22.
- 11.4 ASPI Limited agrees that it will not, and will use its best endeavours to ensure
that any officer, employee, agent or subcontractor of ASPI Limited does not, engage
in any activity or obtain any interest during the course of this Agreement that
is likely to conflict with or restrict ASPI Limited in performing this Agreement.
- TAXES, DUTIES AND GOVERNMENT CHARGES
- 12.1 All taxes, duties and government charges imposed or levied in Australia
or overseas in connection with this Agreement must be borne by ASPI Limited.
- 12.2 ASPI Limited shall submit each claim for payment in the form of
a valid tax invoice. The tax invoice shall include the amount and method of calculation
of any GST payable by ASPI Limited in relation to that claim for payment as a separate
item.
- 12.3 If ASPI Limited incorrectly states the amount of GST payable, or
paid, by the Commonwealth on an otherwise valid tax invoice, ASPI Limited shall
issue to the Commonwealth a valid adjustment note in accordance with the GST Act.
- 12.4 If the Commonwealth makes, or is assessed by the ATO as having
made, a taxable supply to ASPI Limited under or in connection with this Agreement,
the Commonwealth shall be entitled to recover from ASPI Limited upon presentation
of a valid tax invoice, the amount of GST paid or payable by the Commonwealth to
the ATO.
- 12.5 Any amount of GST to be paid by ASPI Limited under clause 12.4
shall be a debt recoverable by the Commonwealth in accordance with clause 4.9.
- DISCLOSURE OF INFORMATION
- 13.1 ASPI Limited acknowledges that the Commonwealth may be required
to provide information in relation to the Funding, the Funding Purposes, or this
Agreement, as required by the operation of any law, judicial or parliamentary body
or governmental agency and accordingly the Commonwealth can give no undertakings
to treat any of ASPI Limited's information or this Agreement as Confidential Information.
- CONFIDENTIAL INFORMATION
- 14.1 Where, in connection with this Agreement, Confidential Information
is provided or produced, the relevant Party shall ensure that any person receiving
or producing the information protects the confidential nature of the information,
except where disclosure of the information is required in accordance with clause
13.1 of this Agreement.
- 14.2 The Commonwealth may at any time require ASPI Limited to give,
and to arrange for its officers, employees, and agents to give, written undertakings
in a form required by the Commonwealth relating to the non-disclosure of specified
material. ASPI Limited shall promptly arrange for such undertakings to be given.
- 14.3 Where it is necessary for a Party to disclose to a third party
Confidential Information belonging to the other Party, the disclosing Party shall
obtain the written consent of the other Party except where disclosure is being made
to a legal adviser or is required in accordance with clause 13.1.
- 14.4 The Commonwealth may impose any conditions or restrictions it considers
appropriate when giving its approval under clause 14.3.
- COMMONWEALTH ACCESS TO PREMISES AND RECORDS
- 15.1 ASPI Limited must, at all reasonable times, give the Commonwealth
and any persons authorised by the Commonwealth (referred to in this clause 15 collectively
as "those permitted") access to premises at which Material and Records associated
with this Agreement are stored, or work as part of the Funding Purposes is undertaken,
and the right to inspect and copy Material and Records, in ASPI Limited's possession
or control, for purposes associated with this Agreement or any review of performance
under this Agreement.
- 15.2 ASPI Limited must provide all reasonable assistance requested by
those permitted when they exercise the Commonwealth's rights under clause 15.1.
- 15.3 The rights referred to in clause 15.1 are subject to:
- the provision of not less than 48 hours' notice during business hours by those permitted
(except where they believe that there is an actual or apprehended breach of the
law); and
- ASPI Limited's reasonable security procedures.
- ACKNOWLEDGMENT AND PUBLICITY
- 16.1 ASPI Limited must, in all publications, promotional and advertising
materials, public announcements and activities by ASPI Limited or on ASPI Limited's
behalf in relation to the Funding Purposes, or any products, processes or inventions
developed as a result of it, acknowledge the financial and other support ASPI Limited
has received from the Commonwealth.
- 16.2 The Commonwealth reserves the right to publicise and report on
the awarding of Funding to ASPI Limited. The Commonwealth may do this by including
in media releases general announcements about the Funding and in annual reports
ASPI Limited's name, the amount of the Funds given to ASPI Limited and the title
and a brief description of the Funding Purposes.
- INDEMNITY
- 17.1 ASPI Limited agrees to indemnify the Commonwealth, its officers,
employees and agents against any direct or indirect loss, damage, liability, expense,
legal proceedings or claim arising in respect of the injury or death of any person
or loss or damage to any property arising out of ASPI Limited's performance of its
obligations under this Agreement, except to the extent that such death or injury
or loss or damage to property resulted from any unlawful or negligent act or omission
on the part of the Commonwealth or its officers, employees or agents.
- INSURANCE
- 18.1 Before utilising the Funding for the Funding Purposes, ASPI Limited
shall be fully insured or registered with the appropriate statutory authority against
liability for death of or injury to persons employed by ASPI Limited, including
liability under statute and common law.
- 18.2 ASPI Limited shall maintain the insurance or registration required
under this clause 18 for the duration of this Agreement and, for the obligations
that survive expiry or termination of this Agreement, shall ensure that cover is
maintained for the period that those obligations survive expiry or termination or
for a period as otherwise specified by the Commonwealth.
- 18.3 ASPI Limited shall, on request, produce satisfactory evidence of
the insurance or registration to the Commonwealth.
- ASSIGNMENT
- 19.1 ASPI Limited must not assign ASPI Limited’s rights under this Agreement
without prior written approval from the Commonwealth.
- NOTICES
- 20.1 A Party giving notice or notifying under this Agreement must do
so in writing:
- directed to the Party’s address, as varied by any written notice; and
- hand delivered or sent by pre-paid post or Electronic Communication to that address.
- 20.2 The Parties' address details are as specified in Schedule 1 to
this Agreement.
- 20.3 A notice given in accordance with clause 20.1 is taken to be received:
- if hand delivered, on delivery;
- if sent by pre-paid post, five Business Days after the date of posting unless it
has been received earlier; or
- if sent by Electronic Communication, at the time that would be the time of receipt
under the Electronic Transactions Act 1999 (Cth) if a notice was being
given under a law of the Commonwealth, which is currently when the Electronic Communication
enters the addressee’s Information System.
- DISPUTE RESOLUTION
- 21.1 Subject to clause 21.3, the Parties agree not to commence any legal
proceedings in respect of any dispute arising under this Agreement, which cannot
be resolved by informal discussion, until the procedure provided by this clause
has been utilised.
- 21.2 The Parties agree that any dispute arising during the course of
this Agreement is dealt with as follows:
- the Party claiming that there is a dispute will send the other a written notice
setting out the nature of the dispute;
- the Parties will try to resolve the dispute though direct negotiation by persons
who they have given authority to resolve the dispute;
- if the Parties are unable to resolve the dispute within 10 Business Days from the
receipt of the notice referred to in clause 21.2(a), the dispute is to be submitted
to a higher level of management within each Party's organisation;
- if the Parties are unable to resolve the dispute within 15 Business Days from referral
of the dispute under clause 21.2(c), the dispute is to be submitted to mediation
or some other alternative dispute resolution procedure agreed by the Parties; and
- if:
- there is no resolution of the dispute;
- there is no agreement on submission of the dispute to mediation or some alternative
dispute resolution procedure; or
- there is a submission to mediation or some other form of alternative dispute resolution
procedure, but there is no resolution within 15 Business Days of the submission,
or such extended time as the parties may agree in writing before the expiration
of the 15 Business Days,
then either Party may commence legal proceedings.
- 21.3 This clause 21 does not apply to the following circumstances:
- either Party commences legal proceedings for urgent interlocutory relief;
- action by the Commonwealth under or purportedly under clauses 3 [Payment], 15 [Commonwealth
Access to Premises and Records] or 22 [Termination]; or
- an authority of the Commonwealth, a State or Territory is investigating a breach
or suspected breach of the law by ASPI Limited.
- 21.4 Despite the existence of a dispute, both Parties must, unless requested
in writing by the other Party not to do so, continue to perform its obligations
under this Agreement.
- TERMINATION
- 22.1 If ASPI Limited fails to fulfil, or is in material breach of, any
of ASPI Limited’s obligations under this Agreement, and ASPI Limited does not rectify
the omission or material breach after receiving 10 Business Days notice in writing
from the Commonwealth to do so, then the Commonwealth may immediately terminate
this Agreement by giving notice to ASPI Limited of the termination. ASPI Limited
must comply with any requirements in the Commonwealth’s notice of termination.
- 22.2 TWhere the Commonwealth terminates this Agreement under clause
22.1 the Commonwealth:
- will not be obliged to pay to ASPI Limited any outstanding amount of the Funds except
to the extent that those monies have been legally committed for expenditure by ASPI
Limited in accordance with this Agreement and are payable by ASPI Limited as a current
liability (written evidence of which will be required) by the date notice of termination
given under subclause 22.1 is deemed to be received in accordance with clause 20.3;
and
- will be entitled to recover from ASPI Limited any part of the Funds which have not,
in the Commonwealth’s opinion, been expended by ASPI Limited in accordance with
the terms and conditions of this Agreement, and all such Funds will be regarded
as a debt due to the Commonwealth capable of being recovered as such in any court
of competent jurisdiction.
- 22.3 Clause 22.2 does not limit or exclude any of the Commonwealth’s
other rights, including the right to recover any other amounts from ASPI Limited
on termination of this Agreement.
- 22.4 The Commonwealth will not be liable to pay compensation for loss
for termination under this clause 22 or loss of any benefits that would have been
conferred on ASPI Limited had the termination not occurred.
- 22.5 The Commonwealth may also, by notice in writing, terminate this
Agreement immediately (but without prejudice to any prior right of action or remedy
which either party has or may have) if ASPI Limited comes under one of the forms
of external administration referred to in Chapter 5 of the Corporations Act 2001,
or an order has been made for the purpose of placing ASPI Limited under external
administration.
- APPLICABLE LAW AND JURISDICTION
- 23.1 The laws of the Australian Capital Territory apply to this Agreement
and the courts of the Australian Capital Territory shall have non-exclusive jurisdiction
in respect to any dispute under this Agreement.
- SURVIVAL
- 24.1 Any provision of this Agreement which expressly or by implication
from its nature is intended to survive the termination or expiration of this Agreement
and any rights arising on termination or expiration shall survive.
- ENTIRE AGREEMENT
- 25.1 This Agreement records the entire agreement and undertaking between
the Parties in relation to the Funding, and supersedes, in relation to these matters,
any previous deeds, agreements, arrangements, and undertakings between them.
- VARIATION
- 26.1 Except for action the Commonwealth is expressly authorised to take
elsewhere in this Agreement, no variation of this Agreement is binding unless it
is agreed in writing and signed by both Parties to this Agreement.
- WAIVER
- 27.1 If either Party does not exercise (or delays in exercising) any
of its rights under this Agreement, that failure or delay does not operate as a
waiver of those rights.
- 27.2 A single or partial exercise by either Party of any of its rights
under this Agreement does not prevent the further exercise of any right.
- 27.3 Waiver of any provision of, or right under this Agreement:
- must be in writing signed by the Party entitled to the benefit of that provision
or right; and
- is effective only to the extent set out in the written waiver.
- 27.4 In this clause 'rights’ means rights or remedies provided by this
Agreement or at law.
- CAPACITY
- 28.1 Each of the Parties warrants and declares that it has full capacity
to enter into and execute this Agreement and that by doing so the terms, conditions,
covenants and agreement herein contained shall be binding on each of them.
- 28.2 ASPI Limited is aware that the Commonwealth is relying on the warranties
in this clause 28 in executing this Agreement.
- ILLEGALITY, INVALIDITY OR UNENFORCEABILITY
- 29.1 The illegality, invalidity or unenforceability of any provision
of this Agreement or any part of a provision of this Agreement shall not affect
the legality, validity or enforceability of any other provision of this Agreement.
Any provision which is illegal, invalid or unenforceable shall be severed from the
remainder of this Agreement.
- NEGATION OF EMPLOYMENT AND AGENCY
- 30.1 Each Party agrees not to represent itself, and shall ensure that
its officers, employees and agents do not represent themselves, as being employees,
partners or agents of the other Party.
- 30.2 Each Party, its officers, employees and agents, shall not by virtue
of this Agreement be, or for any purpose be deemed to be, an employee, partner or
agent of the other Party.
EXECUTION CLAUSES
Executed by the parties.
SIGNED for and on behalf of the
COMMONWEALTH OF AUSTRALIA
represented by and acting through the
Department of Defence
ABN 68 706 814 312 by _____________________________________
in the presence of:
___________________ _____________________________________
SIGNED for and on behalf of
THE AUSTRALIAN STRATEGIC POLICY INSTITUTE
ABN 77 097 369 045 of
Level 2, Arts House, 40 Macquarie Street,
BARTON ACT 2600 by _____________________________________
in the presence of:
___________________ _____________________________________
SCHEDULE 1
This Schedule should be read in conjunction with the periodic Statement of Expectations
provided to ASPI by the Minister for Defence, and the corresponding Statement of
Intent in reply from the ASPI Council.
- FUNDING PURPOSES
The purpose of this Agreement is to provide Funds to assist ASPI Limited to meet
the objectives set out in its Constitution, namely:
- Conducting and publishing research on issues related to Australia’s strategic and
defence policy choices;
- Preparing policy inputs on strategic and defence issues to Government, as requested
by Government, subject to funding;
- Conducting a program of activities to increase understanding of strategic and defence
policy issues among Australians, and to encourage the development of expertise in
topics relevant to Australia’s strategic and defence policy choices; and
- Promoting international understanding of Australia’s strategic and defence policy
perspectives.
The Commonwealth’s investment through this Agreement is the primary enabling input
for ASPI’s operations. The Funding provided by this Agreement will be used to support
ASPI Limited’s deliverables as provided in this Schedule and may also be used to
cover:
- ASPI Limited’s facilities costs and associated operating costs; and
- the costs associated with ASPI’s staffing, management and administration, including
costs of Council Activities and costs of meeting ASPI Limited’s obligations under
the Commonwealth Authorities and Companies Act 1997
as necessary to support the objectives set out above.
- FUNDING AND PAYMENT
The Commonwealth will pay ASPI Limited the annual funding amount at the commencement
of each financial year. Total funding for each year, excluding GST, will be: $3,000,000
in 2010-11, $3,051,000 in 2011-12, $3,118,122 in 2012-13, and $3,196,075 in 2013-14.
This payment includes the effect of indexation consistent with the Defence funding
model currently agreed with Government. Should Government change the Defence funding
model, these changes will be applied to ASPI’s funding.
ASPI Limited shall submit a claim for payment of the Funds on a correctly rendered
invoice. On receipt of a claim for payment of the Funds, the Commonwealth shall
within 7 days either:
- approve the claim where it is correctly rendered and where the services to which
the claim for payment relates are to the reasonable satisfaction of the Commonwealth,
as outlined in Schedule 1; or
- reject the claim, where the services to which the claim for payment is related are
unsatisfactory.
Where a claim is approved by the Commonwealth, the Commonwealth shall make payment
within 30 days of the approval of the claim.
Where the Commonwealth rejects the claim, the Commonwealth shall, within 14 days
of receipt of the claim notify ASPI Limited in writing of the reasons for rejection
and any action to be taken by ASPI Limited for the claim to be rendered correct
for payment. ASPI Limited shall immediately take all necessary steps to make the
Services and the claim for payment conform to the requirements and shall submit
a revised claim to the Commonwealth when such action is complete. The resubmitted
claim shall be subject to the same conditions as if it were the original claim.
- ASPI LIMITED DELIVERABLES
Research Program
ASPI Limited will provide the Contract Manager with an updated research program,
agreed by the ASPI Council and suitable to the achievement of its objectives set
out above, twice in each Funding period, at appropriate times in the ASPI research
planning cycle (nominally in December and June). This research program will have
been developed by the ASPI Research Committee, whose membership will include at
least one representative of the Commonwealth.
The Commonwealth may seek advice from ASPI Limited concerning the content and progress
of the research program at any time, through a written request from the Contract
Manager to the Company.
ASPI will use all reasonable endeavours to complete the agreed research program.
Publications
ASPI Limited agrees to:
- Ensure that its outputs are of a high level of intellectual and policy quality;
- Make a positive and timely contribution to the strategic and policy issues facing
government;
- Produce and publish work of a policy relevant nature on key strategic policy issues;
- Make a substantial contribution to increasing the understanding of and debate of
Defence and strategic issues in Defence, including in the wider public; and
- Maintain a superior reputation in Australia and internationally as a pre-eminent
voice on Defence and security issues.
Each year ASPI Limited will produce at least five major reports on key issues relevant
to Australian strategic and defence priorities, and at least ten shorter papers
on topical subjects that arise in public debate.
ASPI Limited will, as soon as practicable after publication, provide 30 copies of
all ASPI printed publications to the Department of Defence, free of costs and charges.
ASPI may also, at its own discretion, provide additional copies of its publications,
free of charge, to officers within Defence.
ASPI Limited will also provide a copy of each publication, either hard copy or electronic,
free of charge upon request to any Federal Member of Parliament.
Events
ASPI Limited will undertake a program of events, including seminars, workshops and
1.5 track dialogues each year. ASPI Limited will consult the Department in selecting
countries for the dialogues, and on developing invitees/agendas.
ASPI Limited will make allowance for two Departmental officials to attend all ASPI
seminars and conferences, free of registration/attendance fees, when attendance
by officials is appropriate. Officials may be invited by ASPI Limited or nominated
by the Department. ASPI Limited will make its best efforts to ensure sufficient
notice of such events is provided to the Department.
Defence Specific Projects (DSPs)
In addition to the above deliverables, the Commonwealth may direct that up to five
per cent of total annual Commonwealth Funding is to be used for Defence Specific
Projects agreed between ASPI and Defence. The Projects may be for the conduct of
research and/or events.
Defence will advise ASPI Limited of the nature and scope of the Projects at least
two months prior to the commencement of each financial year to facilitate their
inclusion in ASPI budget and activity approval processes. This would not preclude
discussing other projects over the course of the year if they were mutually agreed.
Allocated funds for this program will remain available to ASPI under the conditions
of this Funding Agreement and will not be required to be returned to the Commonwealth.
ASPI Limited will provide the Department with a Project plan, including proposed
timing and resources, within three months of the commencement of each funding period.
ASPI Limited will report to the Department on its performance in meeting the Projects
within one month of the end of that financial year.
- DEPARTMENT OF DEFENCE DELIVERABLES
The Commonwealth’s investment through this Agreement is the principal deliverable
by the Department.
The Department will also support ASPI’s research program by:
- Input into the topics of the publications program;
- Input into topics of, and participation in, the events program;
- Provision upon request and where practicable of background material from Departmental
sources on topics in the approved publications program;1
- Within staffing constraints and workload priorities, review drafts of ASPI publications;
- Distribution of relevant publications to appropriate officers (as established by
Defence in consultation with ASPI) within the Defence organisation; and
- Publicity for ASPI activities and publications to appropriate officers (as established
by Defence in consultation with ASPI) within the Defence Organisation.
ASPI will make its best efforts to provide drafts for comment to the Department
in a timely manner. While the Department may comment on facts or interpretation
in ASPI drafts, ASPI Limited is under no obligation to accept these comments. ASPI
Limited will have sole responsibility for the content of its publications. Any comment
or feedback provided by Defence should not be for quotation or attribution to Defence.
Defence may, with agreement from ASPI on a case-by-case basis, provide secondments
of appropriate Defence officials and ADF officers to ASPI for personal development
purposes or to assist in DSP research for periods of up to six months. Such secondment
would be subject to separate agreement.
- NOTICES
Commonwealth
Any notice or other communication relating to this Agreement must be sent to the
Commonwealth at the following address (or to such other address as notified by the
Commonwealth to ASPI Limited):
Director Strategic External Relations and Education
Strategic Policy Division, Department of Defence
Russell Offices, R1-01-A093
CANBERRA ACT 2600
Invoices should also be forwarded to:
invoices@defence.gov.au
or
Defence Accounts Payable
PO Box 800
SALISBURY SOUTH SA 5106
Invoices must include a Department of Defence Purchase Order Number. This will be
provided post signing of this Agreement.
ASPI Limited
Any notice or other communication relating to this Agreement must be sent to ASPI
Limited (or to such other address as notified by ASPI Limited to the Commonwealth)
at the following:
Business Manager and Company Secretary
Australian Strategic Policy Institute
Level 2, Arts House
40 Macquarie Street
BARTON ACT 2600
- SPECIAL CONDITIONS
Tasks outside the Core Research Program or the Defence Special Projects program
If the Commonwealth requests ASPI Limited to undertake specific research activities
that are outside the ASPI Limited Deliverables approved under this Schedule, any
additional payment for that research, if considered appropriate, will be negotiated
case by case between the Commonwealth and ASPI Limited.
ASPI Limited may also undertake other research and commissioned work not covered
by this Funding Agreement, e.g. research commissioned for clients including other
Commonwealth or State Governments, or the private sector. Such additional work will
not be undertaken to the detriment of completing the program of work agreed under
this Schedule.
1 provision may be satisfied by referring ASPI Limited staff to appropriate
Defence publications. The Department is under no obligation to devote staff resources
to supporting ASPI Limited research or requests for information.
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