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AGREEMENT BETWEEN THE COMMONWEALTH OF AUSTRALIA
AND
THE AUSTRALIAN STRATEGIC POLICY INSTITUTE LIMITED A.C.N. 097 369 045
In relation to Funding of the Company
Australian Government Solicitor
50 Blackall Street
BARTON ACT 2600
Back to Table
of Contents
THIS AGREEMENT ('Agreement') is made on this 29th day of August 2001
BETWEEN
THE COMMONWEALTH OF AUSTRALIA ('the Commonwealth') for the purposes of this Agreement
represented by and acting through the Department of Defence ('the Department')
AND
THE AUSTRALIAN STRATEGIC POLICY INSTITUTE LIMITED ('ASPI Limited'), ACN 097 369
045, whose address is Level 2, Arts House, 40 Macquarie Street, BARTON ACT 2600
BACKGROUND
A 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.
B ASPI Limited has been formed to further the objects specified in clause 2 of this
Agreement
C The Commonwealth has agreed to provide funding to ASPI Limited upon the terms
and conditions contained in this Agreement in order to achieve the above purpose
and objects.
OPERATIVE PART
1. INTERPRETATION Top
1.1 Definitions
In this Agreement, unless the contrary intention appears:
Audited Financial Report - Means an audited statement certified by a person
qualified to be a member of a recognised accounting body in Australia;
Annual Funding Amount - In respect of each full Funding Period means the
amount provided by Defence to ASPI for its research program, and not less than $2.1m;
Australian Consumer Price Indices - Means the Consumer Price Indices published
by the Australian Statistician;
Approved Purposes - Means the activities referred to in clause 2;
Company - Means ASPI Limited;
Confidential Information - Means information that:
(a) is by its nature confidential;
(b) is designated by the Commonwealth as confidential;
or
(c) ASPI Limited knows or ought to know is confidential.
but does not include information which:
(d) is or becomes public knowledge other than by breach of this Agreement or by
any other unlawful means;
(e) is in the possession of ASPI Limited without restriction in relation to disclosure
before the date of receipt from the Commonwealth; or
(f) has been independently developed or acquired by ASPI Limited from information
other than information referred to in paragraph (a), (b) or (c);
Constitution - Means the Constitution of the 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; and
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;
Financial year - Means a period of 12 months ending on 30 June;
Fundss - Means the moneys provided by the Commonwealth to ASPI Limited under
this Agreement;
Funding Period - Means for the first year of operation the period starting
from signature of this agreement, and ending on 30 June 2002, and thereafter each
subsequent financial year commencing on July 1 and ending on 30 June, up to and
including the financial year ending on 30 June 2008;
Initial Funding Period - The Initial funding period will be the period starting
from signature of this agreement, and ending on 30 June 2002, and will be
Intellectual Property - Includes all copyright (including rights in relation
to phonograms and broadcasts), all rights in relation to inventions (including patent
rights), plant varieties, registered and unregistered trademarks (including service
marks), registered designs, and circuit layouts, and all other rights resulting
from intellectual activity in the industrial, scientific, literary or artistic fields;
Material - Includes information and the subject matter of any category of
Intellectual Property rights;
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;
Review Team - Means a review team appointed for the purposes of clause 5;
Term - Means the period referred to in clause 3.1; and
Writing - Means any representation of words, figures or symbols capable of
being rendered in a visible and legible form.
1.2 Interpretation
In this Agreement, unless the contrary intention appears:
(a) words importing a gender include any other gender;
(b) words in the singular include the plural and words in the plural include the
singular;
(c) clause headings are inserted for convenient reference only and have no effect
in limiting or extending the language of provisions to which they refer;
(d) words importing persons include a partnership and a body whether corporate or
otherwise;
(e) all references to dollars are to Australian dollars;
(f) reference to any statute or other legislation (whether primary or subordinate)
is to a statute or other legislation of the Commonwealth as amended or replaced
from time to time;
(g) 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;
(h) the Schedule and any attachments form part of this Agreement;
(i) where any conflict arises between the terms and conditions contained in the
clauses of this Agreement and any part of the Schedule (and attachments if any),
the terms and conditions of the clauses prevail;
(j) where any conflict arises between any part of the Schedule and any part of an
attachment, the Schedule prevails; and
(k) reference to the Schedule (or an attachment) is a reference to the Schedule
(or an attachment) to this Agreement, including as amended or replaced from time
to time by agreement in writing between the parties.
1.3 Entire agreement
This Agreement records the entire agreement between the parties in relation to its
subject matter.
1.4 No variation unless agreed in writing
No variation of this Agreement is binding unless it is agreed in writing between
the parties.
1.5 Reading down or severance of one provision does not affect another provision
Any reading down or severance of a particular provision does not affect the other
provisions of this Agreement.
2. PURPOSE OF THE AGREEMENT Top
The purpose of this Agreement is to provide funds to assist ASPI Limited to meet
the objects set out in its Constitution, namely:
(a) Conducting and publishing research on issues related to Australia¡¯s strategic
and defence policy choices;
(b) Preparing policy inputs on strategic and defence issues to Government, as requested
by Government, subject to funding;
(c) 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
(d) Promoting international understanding of Australia's strategic and defence policy
perspectives.
3. TERM Top
This Agreement shall commence at signature and shall, subject to earlier termination,
continue for a period of 7 years (until 30 June 2008).
4. FUNDS Top
4.1 Funding Level
The Commonwealth will provide an Annual Funding Amount to ASPI Limited of between
$2.1 million and $3.0 million, exclusive of GST.
4.2 Use of Funds
ASPI Limited must use the Funds only for the Approved Purposes and for necessary
administrative costs associated with fulfilling its obligations under this Agreement.
Similarly, any interest earned on the Funds during a financial year may be used
by ASPI Limited, but only as provided for by this subclause.
4.3 Payment of Annual Funding Amount
Subject to parliamentary appropriation and this clause, the Commonwealth will pay
to ASPI Limited the Annual Funding Amount at quarterly intervals starting at the
commencement of each Funding Period of this Agreement.
4.4 No payment if default
The Commonwealth shall not be obliged to pay an Annual Funding Amount in accordance
with clauses 4.2 if ASPI Limited is in default of any obligation under this Agreement.
4.5 Commonwealth may defer payment of Annual Funding Amount
The Commonwealth will be entitled, in addition to any other right it may have, to
defer payment of any Annual Funding Amount until ASPI Limited has provided to the
reasonable satisfaction of the Commonwealth any reports and statements required
to be provided to the Commonwealth under this Agreement.
4.6 Commonwealth may increase Annual Funding Amount
The Commonwealth may in its discretion increase the total Funds to be paid to ASPI
Limited under this Agreement to a maximum of $3,000,000. The amount to be added
to any Annual Funding Amount after such a decision is made will be at the discretion
of the Commonwealth.
4.7 Funds can be adjusted for future legislative changes
The parties agree that changes to legislation effected by the Commonwealth, including
changes to Australia¡¯s taxation system can be grounds for renegotiation of additional
Funds over the Term, provided the changes cause a variation to ASPI Limited¡¯s cost
of 5% or have some other material impact.
4.8 Funds shall be readjusted for inflation
The parties agree that the Annual Funding Amounts will be adjusted during the Term
to reflect changes in Australian Consumer Price Indices. The Tertiary Education
Deflator will be used as the index for adjusting the Annual Funding Agreement. ASPI
will seek from the Department of Finance and Administration the value of the index
each year and apply it to the Annual Funding Agreement. ASPI will inform the Contract
Manager each year as apart of the preparation of its annual budget.
4.9 Funds may be carried over
ASPI Limited may carry over any unspent portion of an Annual Funding Amount from
one Funding Period to the next up to a limit equivalent to 5% of the annual Funding
Amount. Any unspent amount above 5% will be returned to the Commonwealth prior to
ASPI signing off its financial statements for that year.
4.10 Unused Funds to be repaid at end of the Term
Any part of the Funds that have not been spent or committed for expenditure at the
end of the Term (or the date of any earlier termination of this Agreement) are to
be repaid to the Commonwealth. ASPI Limited must not make a commitment for expenditure
of the Funds where the resultant expenditure is likely to occur more than 2 months
after the expiration of the Term unless this agreement is extended or a new one
made.
4.11 Alternate funding Sources
ASPI Limited agrees to develop a long-term plan to secure alternative funding sources
and will advise the Contract Manager of additional funding.
5. REVIEW Top
5.1 Major Reviews
The Department will undertake two reviews of the operations of the ASPI Limited,
with terms of reference and Review Team members approved by the Minister.
It is anticipated that the second Review Team and its terms of reference will be
agreed with the Minister by 1 February 2007 and that its report will be prepared
and delivered to the Minister by 30 May 2007. The report will consider, among other
things, governance issues including the size, structure, and functions of the ASPI
board, and any relevant policy initiatives from Government. This report will form
the basis of any decision to renew this agreement or make a new agreement.
5.2 Materials which may be used by Review Team
It is agreed that in undertaking each review, the Review Team may use any relevant
material it wishes, including without limitation:
(a) any reports which ASPI Limited has provided to the Commonwealth under this Agreement;
(b) any other relevant material including material which the Review Team requires
ASPI Limited to provide for the purpose of this review; and
(c) interviews with employees and associates of ASPI Limited.
5.3 ASPI Limited must supply information to the Review Team.
ASPI Limited must supply any and all information in its possession or control required
by a Review Team, (collectively, or members individually) for the purposes of the
review and report.
5.4 Annual Reviews
ASPI Limited must also cooperate in regular reviews by the Department of the value
of ASPI Limited¡¯s outputs in relation to Defence investment. These reviews are to
be conducted in conjunction with the annual considerations of the Research Committee
of the governing Board.
5.5. ASPI Limited Response to Reviews
ASPI Limited will be required to respond to any recommendations made through the
reviews referred to at clause 5.1 and 5.4, and to negotiate with the contract manager
appropriate steps to address recommendations.
6. REPORTS Top
ASPI Limited agrees to provide the Commonwealth:
(a) within 30 days of the end of the Term:
(i) a final report showing the extent of ASPI Limited achievements in relation to
the objects specified in clause 2; and
(ii) an Audited Financial Report which certifies that funds received by ASPI Limited
under this Agreement have been properly expended in the performance of this Agreement;
(b) such reports as ASPI Limited may be required to prepare pursuant to the Commonwealth
Authorities and Companies Act 1997 or the Corporations Act; and
(c) any other information that the Contract Manager may from time to time notify
to ASPI Limited in writing that it requires.
7. CONTROLS Top
7.1 ASPI Limited to act in accordance with its constitution
ASPI Limited shall not act contrary to its Constitution, and in particular to the
objects and powers of its Constitution.
7.2 Limitations on ASPI Limited
Subject to clause 7.3, ASPI Limited shall not:
(a) 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;
(b) pass any resolution to wind up the ASPI Limited;
(c) pass any resolution or take any action the effect of which has or will have
the result that the ASPI Limited is amalgamated with any other person;
(d) pass any resolution or take any action the effect of which has or will have
the result that the Commonwealth, if a member of the ASPI Limited, ceases to be
a member; or
(e) pass any resolution or take any action the effect of which results, or will
result in a change to the objects and powers of the ASPI Limited;
without first notifying the Commonwealth in writing and obtaining the consent of
the Commonwealth, which consent may be given or withheld in the absolute discretion
of the Commonwealth.
7.3 Limitations imposed by Law
The ASPI Limited will not be in breach of any provision of this clause 7 where the
ASPI Limited is required to act, or refrain from acting, by operation of law.
8. ACCOUNTS Top
8.1 ASPI Limited to establish a bank account
ASPI Limited shall pay the Funds into a bank account approved by the Commonwealth
and shall identify the receipt and expenditure of the Funds within ASPI Limited
accounting records.
8.2 ASPI Limited to keep proper records
ASPI Limited shall keep proper records and accounts of its transactions and affairs
in relation to the use of the Funds in accordance with the accounting principles
generally applied in commercial practice and as required by law, and shall do all
things necessary to ensure that all payments using the Funds are correctly made
and properly authorised and adequate control is maintained over the incurring of
liabilities.
9. CAC REPORTS Top
9.1 All CAC reports must be supplied to Contract Manager
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.
9.2 Time frame for delivery of CAC reports to Contract Manager
The time frame for delivery of any document under this clause is the same time frame
by which ASPI Limited must provide any documents to its responsible Minister under
the CAC Act.
10. ASSETS Top
10.1 Definition of assets
For the purpose of this clause ¡°asset¡± includes personal and real property, but
shall not mean Intellectual Property.
10.2 Ownership of assets
Ownership of any asset purchased by ASPI Limited wholly or partially with the use
of the Funds shall be vested in ASPI Limited.
10.3 ASPI Limited must establish a register of assets
ASPI Limited shall list all of its assets (whether purchased partly or wholly with
the Funds or otherwise) in an Assets Register which shall be available for inspection
by the Commonwealth at any time. The Assets Register shall record:
(a) the date of purchase or transfer of the asset to ASPI Limited, including those
assets transferred to ASPI from the Department of Defence on establishment;
(b) a description of the asset;
(c) the purchase price (if any);
(d) any identifying marks or numbers;
(e) relevant details of its disposal such as the date and method of disposal, any
sum received and to whom it was sold or disposed.
10.4 Asset Register to be updated
The Assets Register shall be updated as soon as practicable after assets are acquired
or disposed of by ASPI Limited.
10.5 ASPI Limited notify the Commonwealth of disposal of certain assets
ASPI Limited must obtain the written notification of the Commonwealth prior to the
sale or disposal of an asset with a value exceeding $10,000.00.
10.6 ASPI Limited must safeguard assets
ASPI Limited must not encumber assets without the prior written approval of the
Commonwealth, and must:
(a) safeguard assets against loss, damage or unauthorised use;
(b) maintain them in good condition; and
(c) comprehensively insure all assets with a value exceeding $1000.00.
10.7 ASPI Limited must comply with directions from Commonwealth in relation to disposal
of assets
Disposal of assets by ASPI Limited shall be undertaken in accordance with any requirements
to notify or seek permission from the Commonwealth that are notified by the Commonwealth
from time to time.
10.8 ASPI Limited must notify the Commonwealth before entering into a lease
Prior written notification of the Commonwealth is required where ASPI Limited proposes
to lease an asset using the Funds to pay either the whole or part of the leasing
costs.
10.9 ASPI Limited must comply with directions in relation to a proposed lease
ASPI Limited must:
(a) provide the Contract Manager with a copy of the leasing agreement; and
(b) comply with any directions of the Contract Manager in relation to a proposed
lease, including matters relating to the disposition of an item at the end of the
lease period.
10.10 ASPI Limited not to use Funds as security for loans
ASPI Limited shall not use the Funds as security for the purpose of obtaining commercial
loans.
11. RESEARCH PRIORITIES Top
11.1 Research Program
Within three months of the commencement of each funding period, ASPI Limited will
provide the Contract Manager with a research program, agreed by the ASPI Council,
suitable to the achievement of its objects set out in clause 2 . This research program
will have been developed by the ASPI's Research Committee, whose membership will
include at least one representative of the Commonwealth.
The Commonwealth may seek advice from ASPI concerning the content and progress of
the research program at any time, through a written request from the Contract Manager
to the Company.
11.2 Core Research Program Content
Each year ASPI Ltd will produce at least five (5) major reports on key issues relevant
to Australian strategic and defence priorities, and at least five (5) shorter papers
on topical subjects that arise in public debate.
ASPI Ltd will also undertake a program of events, including seminars, workshops
and 1.5 track dialogues. ASPI will host up to two 1.5 track dialogues each year
from within the funds provided by this Agreement. ASPI will consult the Department
in selecting countries for the dialogues, and on developing invitees/agendas. Additional
1.5 track dialogues sought by the Department to be hosted by ASPI Ltd will normally
be at additional Departmental expense.
The core research program may include specific research activities for the Commonwealth
and not for general public release, to the extent that agreed program does not impede
on the objects set out in clause 2.
11.3 Approved Research Program
ASPI Limited will use all reasonable endeavours complete the agreed research program.
11.4 Approved Research Program - negotiation of changes
The Commonwealth or ASPI Ltd may request a renegotiation of specific elements of
the approved research program subject to changed priorities, to the extent that
any renegotiation does not impede on the objects set out in clause 2.
11.5 Tasks outside the Core Research Program
If the Commonwealth requests ASPI Limited to undertake specific research activities
that are outside the research program approved under clause 11.1, any additional
payment for that research, if considered appropriate, will be negotiated case by
case between the Commonwealth and ASPI Limited, on a partial or full cost recovery
basis.
ASPI Ltd may also undertake other commissioned work not covered by this Funding
Agreement, eg 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 clause 11.2.
12. INTELLECTUAL PROPERTY RIGHTS AND DELIVERABLES
Top
12.1 IP vested in ASPI Limited
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.
12.2 Deliverables to the Department
ASPI Ltd will, as soon as practicable after publication, provide 30 copies of all
ASPI printed publications to the Department, free of costs and charges. Additional
copies will be subject to ASPI Ltd's standard charge for the publication.
ASPI Ltd will also provide a copy of each publication, either hard copy or electronic,
free of charge upon request to any Federal Member of Parliament.
ASPI Limited will make allowance for two (2) 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 or nominated by the
Department. ASPI will make its best efforts to ensure sufficient notice of such
events is provided to the Department.
12.3 Enabling Investment: Staffing, Infrastructure and Operating Costs
The Commonwealth's investment through this Funding Agreement is the primary enabling
input for ASPI's operations. The Funding Agreement covers:
a. ASPI Ltd's facilities costs and associated operating costs; and
b. the costs associated with ASPI's staffing, management and administration, including
costs of Council activities and costs of meeting ASPI Ltd's obligations under the
Commonwealth Authorities and Companies Act 1997; and
c. the elements of ASPI's core research program;
necessary to support the objects set out in clause 2 of this agreement.
12.4 Deliverables by the Department
The Commonwealth's investment through this Funding Agreement is the principal deliverable
by the Department.
The Department will also support ASPI's work program by:
a. participation in meetings of its Council and subcommittees;
b. input into the topics and timing of the publications program (including through
participation in the Research Programs Committee);
c. input into topics and timings of, and participation in, the events program, as
set out in clause 11.2 above;
d. provision upon request and where practicable of background material from Departmental
sources on topics contained in the approved publications program; and
e. within staffing constraints and workload priorities, review of drafts of ASPI
publications.
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 interpretations
in ASPI drafts, ASPI Ltd is under no obligation to accept these comments. ASPI Ltd
will have sole responsibility for the content of its publications. Any comment or
feedback provided by Defence on ASPI drafts should not be for quotation or attribution
to Defence.
13. ACKNOWLEDGMENT Top
In all publications, promotional materials and activities funded with moneys provided
by the Commonwealth ASPI Limited shall ensure that there is an acknowledgment of
funding by or through the auspices of the Commonwealth.
14. QUALITY AND PUBLICATION Top
ASPI Limited agrees to:
(a) ensure that its outputs are of a high level of intellectual and policy quality;
(b) make a positive and timely contribution to the strategic and policy issues facing
government;
(c) produce and publish work of a policy relevant nature on key strategic policy
issues;
(d) make a substantial contribution to increasing the understanding of and debate
of Defence and strategic issues in Defence, including in the wider public;
(e) establish a superior reputation in Australia and internationally as a pre-eminent
voice on Defence and security issues.
15. DISCLOSURE OF INFORMATION Top
15.1 Confidential Information
ASPI Limited agrees not to disclose to any person other than the Commonwealth, any
Confidential Information relating to this Agreement without prior approval in writing
from the Commonwealth.
15.2 Conditions may be attached to approvals
The Commonwealth may impose any conditions or restrictions it considers appropriate
when giving its approval under clause 15.1.
15.3 Commonwealth may require written undertakings re non-disclosure
The Commonwealth may at any time require ASPI Limited to give, and to arrange for
its officers, employees, agents and subcontractors to give, undertakings in writing
in a form reasonably required by the Commonwealth, relating to the non-disclosure
of Confidential Information.
15.4 ASPI Limited must provide undertakings if required
If ASPI Limited receives a request under subclause 15.3 it agrees to arrange promptly
for all such undertakings to be given.
15.5 No breach if disclosure required by law
The obligations on ASPI Limited under this clause 15 will not be taken to have been
breached where the information referred to is legally required to be disclosed.
15.6 Survival of clause
This clause 15 will survive the expiration or termination of this Agreement.
16. COMPLIANCE WITH LAW Top
16.1 ASPI Limited must comply with Commonwealth laws
ASPI Limited agrees, in carrying out this Agreement and its activities, to comply
with:
(a) 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
(b) any obligations it has under the Equal Opportunity for Women in the Workplace
Act 1999.
17. CONFLICT OF INTEREST Top
17.1 Warranty as to conflict
ASPI Limited warrants that, to the best of its knowledge after making diligent inquiry,
at the date of signing this Agreement no conflict with the interests of the Commonwealth
exists or is likely to arise in the performance of this Agreement.
17.2 ASPI Limited must notify Commonwealth if conflict arises
If, during the currency of this Agreement a conflict of interest arises, or appears
likely to arise, ASPI Limited agrees to:
(a) notify the Commonwealth immediately in writing;
(b) make full disclosure of all relevant information relating to the conflict; and
(c) take such steps as the Commonwealth may reasonably require to resolve or otherwise
deal with the conflict.
17.3 Failure to notify may result in termination by Commonwealth
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.
17.4 ASPI Limited to avoid activities which may give rise to conflicts
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.
18. ACCESS TO ASPI LIMITED PREMISES
Top
18.1 Commonwealth may access premises
ASPI Limited agrees to give to the Commonwealth or to any persons authorised in
writing by the Commonwealth access to premises occupied by ASPI Limited on not less
than 48 hours' notice during business hours (unless there are exceptional circumstances)
to inspect the records, documents and papers of ASPI Limited relating directly or
indirectly to the receipt/expenditure or payment of the funds or otherwise to the
performance of this Agreement.
19. INDEMNITY Top
19.1 ASPI Limited indemnifies the Commonwealth
ASPI Limited agrees to indemnify the Commonwealth from and against any:
(a) liability incurred by the Commonwealth;
(b) loss of or damage to property of the Commonwealth; or
(c) loss or expense incurred by the Commonwealth in dealing with any claim against
it including legal costs and expenses on a solicitor/own client basis and the cost
of time spent, resources used or disbursements paid by the Commonwealth,
arising from:
(d) any negligent act or omission by ASPI Limited its officers, employees, agents
or subcontractors in connection with this Agreement; or
(e) any breach by ASPI Limited of its obligations or warranties under this Agreement;
where, and to the extent that, there was fault on the part of ASPI Limited its officers,
employees, agents or subcontractors whose conduct gave rise to the that liability,
loss or damage, or loss or expense.
19.2 Indemnity does not affect other rights
The right of the Commonwealth to be indemnified under this clause 19 is in addition
to, and not exclusive of, any other right, power or remedy provided by law, but
to the extent that the Commonwealth recovers under any such right, power or remedy
its right to recover under this Agreement will be reduced accordingly.
19.3 Meaning of ¡®Commonwealth¡¯
In this clause 19 ¡°Commonwealth¡± includes officers, employees and agents of the
Commonwealth.
19.4 Survival of clause
This clause 19 will survive the expiration or termination of this Agreement.
20. DISPUTE RESOLUTION Top
20.1 Procedure to settle disputes
The parties agree that any dispute arising during the course of this Agreement will
be dealt with as follows:
(a) first, the party claiming that there is a dispute will send to the other a notice
setting out the nature of the dispute;
(b) secondly, the parties will try to resolve the dispute by direct negotiation,
including by referring the matter to the Contract Manager and the CEO of ASPI Limited;
(c) thirdly, the parties have 15 business days from the sending of the notice to
reach a resolution or to agree that the dispute will be submitted to mediation or
some other form of alternative dispute resolution procedure; and
(d) lastly, if:
(i) there is no resolution or agreement; or
(ii) there is a submission to mediation or some other form of alternative dispute
resolution procedure, but there is no resolution within 20 business days of the
submission, or such extended time as the parties may agree in writing before the
expiration of the 20 business days,
then, either party may commence legal proceedings.
20.2 Instances where this clause does not apply
This clause 20 does not apply to:
(a) action by either party under or purportedly under clause 22; or
(b) action by the Commonwealth under or purportedly under clause 21,
nor does it preclude either party from commencing legal proceedings for urgent interlocutory
relief.
21. TERMINATION FOR CONVENIENCE Top
21.1 Commonwealth may terminate for convenience
The Commonwealth may, at any time upon giving not less than 30 days notice in writing,
terminate this Agreement or reduce its scope (with a consequent reduction in Funds).
21.2 ASPI Limited must minimise loss arising out of termination or reduction
Upon receipt of a notice of termination or reduction ASPI Limited agrees to take
all available steps to minimise loss resulting from that termination or reduction.
21.3 Limit on liability for costs
Where there has been a termination under this clause 21, the Commonwealth will be
liable only for reasonable and unavoidable costs incurred by ASPI Limited as a consequence
of such termination or reduction.
21.4 No compensation for prospective profit
ASPI Limited will not be entitled to compensation for loss of prospective profits.
22. TERMINATION FOR DEFAULT Top
22.1 Parties may terminate for material breach
Where a party fails to satisfy any of its obligations under this Agreement, the
other party if it considers that the failure:
(a) constitutes a material breach not capable of remedy, may, by notice, terminate
this Agreement immediately;
(b) is capable of remedy, may, by notice require that the failure be remedied within
the time specified in the notice and, if not remedied within that time, may terminate
this Agreement immediately by giving a second notice.
22.2 Commonwealth may terminate if ASPI Limited comes under external administration
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, or an order has been made for
the purpose of placing ASPI Limited under external administration.
23. NEGATION OF EMPLOYMENT, PARTNERSHIP AND AGENCY
Top
23.1 ASPI Limited not to misrepresent its association with the Commonwealth
ASPI Limited agrees not to represent itself as being a partner or agent of the Commonwealth,
or as otherwise able to bind or represent the Commonwealth.
23.2 ASPI Limited is not able to represent or bind the Commonwealth
ASPI Limited is not by virtue of this Agreement a partner or agent of the Commonwealth,
nor does ASPI Limited have any power or authority to bind or represent the Commonwealth.
24. WAIVER Top
24.1 No waiver if rights not exercised or delay
If a party does not exercise (or delays in exercising) any of its rights, that failure
or delay does not operate as a waiver of those rights.
24.2 Partial exercise of rights does not prevent further exercise of rights
A single or partial exercise by a party of any of its rights does not prevent the
further exercise of any right.
24.3 Meaning of ¡®rights¡¯
In this clause 24, ¡®rights¡¯ means rights or remedies provided by this Agreement
or at law.
25. ASSIGNMENT AND NOVATION Top
25.1 No assignment without approval
ASPI Limited cannot assign its obligations, and agrees not to assign its rights,
under this Agreement without, in either case, prior approval in writing from the
Commonwealth.
25.2 No consultations re novation without approval
ASPI Limited agrees not to consult with any other person for the purposes of entering
into an arrangement that will require novation of the Agreement without first consulting
the Commonwealth.
26. APPLICABLE LAW Top
26.1 Laws in ACT apply
The laws in the Australian Capital Territory apply to this Agreement.
27. NOTICES Top
27.1 Form of notice
Any notice, request or other communication to be given under this Agreement is to
be in writing and dealt with as follows:
(a) if given by ASPI Limited to the Commonwealth - signed by the CEO or Chairman
of ASPI Limited and marked for the attention of the Contract Manager
or as otherwise notified by the Commonwealth; or
(b) if given by the Commonwealth to ASPI Limited- signed by the Contract Manager
and marked for the attention of the CEO or Chairman of the ASPI Limited
or as otherwise notified by ASPI Limited.
27.2 Method of giving notice
Any notice, request or other communication is to be delivered by hand, sent by pre-paid
post or transmitted electronically, and if it is sent or transmitted electronically
a copy is to be sent to the addressee by pre-paid post.
27.3 When notice is deemed to be received
A notice, request or other communication will be deemed to be received:
(a) if delivered by hand, upon delivery;
(b) if sent by pre-paid ordinary post within Australia, upon the expiration of 2
business days after the date on which it was sent; and
(c) if transmitted electronically, upon receipt by the sender of an acknowledgment
that the communication has been properly transmitted to the recipient.
27.4 Address for notices
Notices under this clause shall be addressed, when sent by post to the Commonwealth,
to;
and when sent by post to ASPI Limited, to:
SIGNED for and on behalf of
the COMMONWEALTH OF AUSTRALIA by:
SIGNED for and on behalf of
AUSTRALIAN STRATEGIC POLICY INSTITUTE LIMITED by:
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