New Frontiers Cooperative Drilling round 2 Funding Deed.
Funding Deed
Department:
NSW Department of Industry, Skills & Regional
Development
Division:
Resources & Energy
Activities:
Drilling and related works including reporting
requirements
Name of Project:
New Frontiers Cooperative Drilling round 2
State of NSW
Department of Industry, Skills & Regional Development
1
New Frontiers Cooperative Drilling round 2 Funding Deed.
Contents
A.
Grant Details ................................................................................................................................... 3
1.
Department ................................................................................. Error! Bookmark not defined.
2.
Grantee ...................................................................................................................................... 3
3.
Recitals ....................................................................................................................................... 4
B.
Interpretation and Definitions ........................................................................................................ 4
1.
Interpretation............................................................................................................................. 4
2.
Definitions .................................................................................................................................. 4
C.
Terms .............................................................................................................................................. 7
1.
Commencement......................................................................................................................... 7
2.
The Grantee’s obligations .......................................................................................................... 7
3.
Purpose of Grant ........................................................................................................................ 8
4.
Payment of Grant ....................................................................................................................... 8
5.
Withholding, Suspension and Changes to Grant ....................................................................... 9
6.
Capital Equipment ...................................................................................................................... 9
7.
GST ............................................................................................................................................. 9
8.
Reporting and Payment of Grant ............................................................................................... 9
9.
Intellectual Property ................................................................................................................ 11
10. Confidential Information.......................................................................................................... 11
11. Privacy ...................................................................................................................................... 12
12. Public Announcements and Acknowledgement ...................................................................... 13
13. Insurance .................................................................................................................................. 13
14. Indemnities .............................................................................................................................. 13
15. Termination .............................................................................................................................. 14
16. Notices ..................................................................................................................................... 15
17. Work Health and Safety ........................................................................................................... 15
18. General ..................................................................................................................................... 15
19. Dispute Resolution ................................................................................................................... 17
D.
Execution clauses .......................................................................................................................... 18
E.
Application: Invitation to Apply .................................................................................................... 20
State of NSW
Department of Industry, Skills & Regional Development
2
New Frontiers Cooperative Drilling round 2 Funding Deed.
A. Grant Details
1. Department
Details
Department Contact Person
(refer to clause 16 Notices)
Name
The Crown in right of the State of New South
Wales acting through the Department of Industry,
Skills and Regional Development (ABN 72 189 919
072).
Division
Resources & Energy
Address
Name
Position
Address
516 High St, Maitland NSW 2320
Michael Hallett
Executive Officer, Geological Survey of NSW
516 High St
Maitland NSW 2320
cooperative.drilling@industry.nsw.gov.au
E-mail
2. Grantee
Details
Grantee Contact Person
Grantee Secondary Contact
Details
Project Name (the Project),
excluding other exploration
activities in the tenement
Tenement
Awarded claim percentage
per metre drill costs
Total Grant Funds (A
maximum total of $[XX](GST
exclusive) payable in the
amounts, set out in Schedule
C 8).
Company Name
and ABN
Contact Name
Position
Telephone
Mobile
E-mail
Name
Position
Telephone
Mobile
E-mail
%
$
State of NSW
Department of Industry, Skills & Regional Development
3
New Frontiers Cooperative Drilling round 2 Funding Deed.
Insurance policies required (refer to clause 13 Insurances)
Types of Insurances
Minimum Sum Insured
Broadform Public Liability
$10million for any single occurrence and unlimited in
the aggregate as to the number of occurrences.
Tick if Required
☐
3. Recitals
1. The Grantee has applied and been successful for Grant Funds pursuant to the New Frontiers
Cooperative Drilling program (Program) (a NSW Government program which provides grants
to exploration entities to fast-track exploration drilling programs).
2. Subject to the terms and conditions set out in this Deed, the department has agreed to
provide the Grant to the Grantee for the sole purpose of the Grantee undertaking Activities
for the Program.
B.
Interpretation and Definitions
1. Interpretation
Unless the context requires otherwise, in this Deed:
(a)
the terms set out in the left hand column of the Grant Details have the meaning
ascribed to them in the right hand column of the Grant Details;
(b)
words in the singular include the plural and vice versa;
(c)
where any time limit pursuant to this Deed falls on a day which is not a Business Day
then the time limit will be deemed to have expired on the next Business Day;
(d)
a reference to a statute, regulation, ordinance or by-law will be deemed to include a
reference to all statutes, regulations, ordinances or by-laws amending, consolidating or
replacing same from time to time;
(e)
headings are for convenience only and do not affect the interpretation of this Deed;
(f)
the meaning of general words is not limited by specific examples introduced by
“including” or “for example” or similar expressions;
(g)
references to persons include bodies corporate, government agencies and vice
versa;
(h)
references to the parties include references to respective directors, officers,
employees and agents of the parties;
(i)
nothing in this Deed is to be interpreted against a party solely on the ground that
the party put forward this Deed or any part of it; and
(j)
where an expression is defined, any other grammatical form of that expression has a
corresponding meaning.
2. Definitions
Activity means the activity(s) described in the Application, which aim to fulfil one or more of the
Objectives of the Project, and includes:
State of NSW
Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
(a)
the provision of Project Material;
(b)
any works that are required to be undertaken by the Grantee as part of a Project
during the Cooperative Drilling round 2 Term
(c)
any parts of the Activity that are required to be undertaken by the Grantee’s
subcontractors; and
(d)
any other obligations that are required to be performed by the Grantee under this
Deed in order to deliver the Project.
Application means the Cooperative Drilling round 2 Invitation to Apply submitted by the Grantee to
the Department. See Part E of this Funding Deed.
Background IP means Intellectual Property that is made available by a party for the purpose of this
Deed, whether upon commencement of this Deed or during the term of the Deed, and:
(a)
(b)
is in existence prior to the date of this Deed; or
is brought into existence independently of this Deed or the Project.
Budget refers to a budget for expenditure of the Grant for the purposes of conducting the Activity or
performing obligations under this Deed.
Business Day means any day other than a Saturday, Sunday or public holiday in New South Wales.
Capital Equipment means any item of tangible property, purchased, leased, created or otherwise
brought into existence wholly, or in part, with the use of the Grant, which has at that time a value of
over $5,000 inclusive of GST, but does not include Project Material.
Claim means any cost, expense, loss, damage, claim, action, proceeding or other liability (whether in
contract, tort or otherwise), however arising and includes legal costs on a full indemnity basis.
Commencement Date means the date the last party has executed this Deed.
Confidential Information of a party means all trade secrets, financial information and other
commercially or scientifically valuable information of whatever description and in whatever form
(whether written or oral, visible or invisible) which:
(a)
is by its nature confidential;
(b)
has been designated as confidential by a party;
(c)
is capable of protection at law or equity as confidential information; or
(d)
is derived or produced partly from the Confidential Information,
but does not include information that:
(e)
is in the public domain; or
(f)
is independently known or developed by the party receiving the information other
than as a result of a breach of this Deed or any other obligation of confidentiality owed by
or to any other person.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business,
pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of
opportunity or expectation loss and any other form of consequential, special, indirect, punitive or
exemplary loss or damage.
State of NSW
Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
Deed means this Funding Feed document and includes the Interpretation and Definitions, Details,
Terms and program descriptions submitted in the Application - and any other schedules, annexures
or other documents cross-referenced in this deed.
Expenditure means costs directly related to the approved Activity
Final Report means the final report as specified in clause 8 Reporting and Payment
Grant means the grant specified in the Details.
Grantee means the recipient of the grant as specified in the Details.
GST means the goods and services tax or similar value added tax levied or imposed in Australia
under the GST Law and includes any replacement or subsequent similar tax.
GST Law means A New Tax System (Goods and Services Tax) Act 1999.
Information Protection Principles means a provision set out in Division 1, Part 2 of the Privacy and
Personal Information Protection Act 1998 (NSW).
Intellectual Property or IP includes:
(a)
all rights in relation to copyright, inventions, plant varieties, trademarks, designs,
patents; and
(b)
all other rights resulting from intellectual activity in the industrial, scientific, literary
or artistic fields including trade secrets and know-how,
(c)
but does not include Moral Rights.
Moral Rights has the same meaning as in the Copyright Act 1968 (Cth).
Notice means any approvals, consents, instructions, orders, directions, statements, requests and
certificates, or other communication to be given under this Deed.
Objectives means the objectives of the Activities described in the Application.
Personal Information has the same meaning as in the Privacy and Personal Information Protection
Act 1998 (NSW).
Phased Approach means a drilling program as described in the Application that the Grantee for
logistical reasons, carries out in two or more discrete phases.
Project Material means material created as part of or in performance of the Project as described in
clause 8.
Project Plan means the work plan described in the Application.
Program means the New Frontiers Cooperative Drilling program round 2.
Program dates means the dates between the Commencement Date and 30 June 2017, by which
time the Grantee must complete the relevant activities as set out in the Application.
State of NSW
Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
Report means Project Material that is provided to the Department for reporting purposes described
in clause 8.
Taxable Supply has the same meaning as in the GST Law.
Tax Invoice has the same meaning as in the GST Law.
Term means the period commencing on the Commencement Date and ending on the date this Deed
is terminated in accordance with clause 15 Termination.
Unexpended Grant Funds means any part of the Grant Funds that is committed by the Department
but unspent by the Grantee.
C.
Terms
1. Commencement
1.1. This Deed will commence on the Commencement Date and continue for the Term.
2. The Grantee’s obligations
2.1 The Grantee must:
(a)
ensure the Grant Funds provided under this Deed are utilised in accordance with the
Application and solely for the purposes of the Program;
(b)
not undertake activities that are inconsistent with the Activity(s) without the prior
written approval of the Department;
(c)
comply with the reporting requirements set out in clause 8,
(d)
ensure that all Project Materials are submitted no later than 30 June 2017,
(e)
attend meetings with the Department to discuss any aspect of the Project, when
requested by the Department;
(f)
immediately inform the Department Contact Person of any change in the Grantee’s
status or circumstances that may affect the Grantee’s ability to undertake the Project or to
comply with this Deed;
(g)
comply with all policies, guidelines and reasonable directions provided by the
Department to the Grantee;
(h)
report on exploration activity on the Tenement as per its obligations to the
Department;
(i)
agrees to retain for a period of four years after termination or expiration of this
Deed all records relating to the Grant.
(j)
give full and accurate answers to any questions the Department or its representative
may have concerning records relating to this Deed and provide all assistance reasonably
requested by the Department (including State or Commonwealth government
departments or agencies) in respect of any inquiry into or concerning the Project or this
Deed. For these purposes an inquiry includes any administrative or statutory review, audit
or inquiry (whether within or external to the Department), any request for information
directed to the Department, and any inquiry conducted by Parliament or any Parliamentary
committee.
State of NSW
Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
(k)
if requested by the Department, provide additional information to the Department
concerning the Project, subject to the Department’s request being reasonable in terms of
administrative overheads and costs involved with compliance.
(l)
keep full and accurate accounts and records including:
I.
an income and expenditure statement for the financial year(s) during the Term
compared with the Budget and the audit of those records in accordance with
Australian Auditing Standards;
II.
documents relating to the Project including details of all work carried out
under the Deed so as to enable all receipts and payments related to the
Project to be identified in the Grantee’s accounts and reported in accordance
with this Deed;
III.
permit the Department at any time on reasonable prior notice, through its
officers, agents or advisers authorised on its behalf, to examine and inspect
any material in the possession of the Grantee which is relevant to the Grant or
this Deed, including any records, and provide all necessary facilities for that
purpose;
2.2 The obligations set out in clause 2 of this Deed are mandatory and non-compliance by the
Grantee of any of those obligations will entitle the Department to terminate this Deed in
accordance with clause 15.
2.3 The Grantee warrants that it:
(a)
will undertake the Project as stipulated in the Application in accordance with this
Deed diligently, effectively and with due care and skill;
(b)
has the necessary qualifications and experience to undertake and complete the
Project; and
(c)
all statements made in the Application were, when made, and remain correct,
complete and not false or misleading in anyway.
3. Purpose of Grant
3.1. The Grant is personal to the Grantee and must not be used for any other purpose other
than for expenses incurred directly in connection with the Project Plan described in the
Application.
4. Payment of Grant
4.1 Payment by the Department of the Grant Funds is subject to:
(a)
there being no un-remedied breach by the Grantee; and
(b)
the Department, in its reasonable opinion, being satisfied with the Grantee’s
performance of the Activities contained in the Application.
4.2 Any payment of Grant Funds by the Department does not constitute an admission on the
part of the Department that the performance of the Activity is in conformity with this Deed
and no payment will be deemed to release the Grantee from its obligations under this
Deed.
4.3 In no circumstances will the Department pay an amount in excess of the Grant Funds.
4.4 The Department is under no obligation to pay Unexpended Grant Funds to the Grantee.
State of NSW
Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
5. Withholding, Suspension and Changes to Grant
5.1. Notwithstanding any other clause of this Deed, the Department may withhold, suspend
payment or otherwise adjust any aspect of the Grant Funds or any part of it for any reason
at its sole discretion including but not limited to if it reasonably considers that the Grantee
has not complied with this Deed
5.2. The Department may set off the amount of any overpayment or claim for repayment
against any future payment of the Grant Funds to the Grantee.
6. Capital Equipment
6.1. The Grantee must not acquire any Capital Equipment with the Grant.
7. GST
7.1 All amounts paid to the Grantee by the Department in relation to this Deed are exclusive of
GST
7.2 Unless otherwise defined in this Deed, words or expressions used in this clause have the
same meaning as defined in the GST Law
7.3 If a Supply made under or in connection with this document is a Taxable Supply, then at or
before the time any part of the consideration for the Supply is payable:
(a)
the Recipient must pay the Supplier an amount equal to the total GST for the Supply,
in addition to and in the same manner as the consideration otherwise payable under this
document for that Supply; and
(b)
the Supplier must give the Recipient a Tax Invoice for the Supply.Reporting and
Payment of Grant
8.1. Progress Report
(a)
Schedule and Submission; The Grantee must submit Progress Reports to the
Department Contact Person on or before the following dates:

Friday 30th September 2016

Friday 30th December 2016

Thursday 31st March 2017

Thursday 30th June 2017
If the Final report is to be submitted prior to 30th June 2017, no further Progress Reports are
required.
(b)
Content; Format for submission should be in pdf or similar in simple report style.
Content to include in Progress Report:

Program details: Project name, Location, Company, Tenement, Contact
name, Contact number and Contact email.

Timeline of drill program activities

Issues or concerns related to drill program activities

Description of the drilling works carried out (if any)
o
o
Full list of activities and cost
Cooperative Drilling Metres drilled and cost
State of NSW
Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
o

Drillers Contract/Agreement
Spatial Map(s) showing location as specified in the Application
8.2. Final report
(a)
In order to submit the final report, and be eligible for payment of part or the entire
grant the Grantee must have completed all or part of the Activity in the Application.
(b)
Schedule and submission; Final Report to be provided at the completion of the
Program within the Program Dates (30th June 2017).
(c)
In circumstance where Grantees have long or broken drilling programs the Grantee
may access interim Grant funds, as part of a Phased Approach. In this case, the format and
delivery of Interim reports and attachments must be in the same format and content as the
Final Report.
(d)
Content; Format for submission should be in pdf or similar in simple report style.
Content to include in Progress Report:

Program details: Project name, Location, Company, Tenement, Contact
name, Contact number and Contact email.

Timeline of drill program activities

Issues or concerns related to drill program activities

Description of the drilling works carried out,
o
o
Full list of activities and cost
Cooperative Drilling Metres drilled and cost

Drillers Contract/Agreement

Drillers tax invoices itemised and proof of payment

Drillers logs

Completed NSW Exploration Reporting Templates for Activities described
in the Application.

Spatial Map(s) showing locations drilled and drillhole name and the EL
boundary.

Expenditure report verifying the amount of the Grant claimed, and total
Expenditure for Activities described on the Application
8.3. Invoicing
(a)
In circumstance where Grantees have long drilling programs there is opportunity to
access interim payment of Grant funds via a Phased Approach.
i.
The Grantee must have completed all or part of the Activity described in the
Application.
ii.
The funds released as part of a Phased Approach will be directly linked with
the eligible metres drilled and corresponding Drillers invoices and contracts.
(b)
The Grantee must ensure that the acceptable Tax Invoice and the Final Report is
provided to the Department no later than 5pm AEST 30 June 2017.
State of NSW
Department of Industry, Skills & Regional Development
10
New Frontiers Cooperative Drilling round 2 Funding Deed.
(c)
The Invoice must be accompanied with a Final or Interim Report (as described in
Part 8.2)
(d)
The Department will pay to the Grantee’s bank account (which must have a separate
account code), within 30 Business Days of:
i.
receiving an acceptable Tax Invoice from the Grantee for the portion of the
Grant Funds that the Grantee is entitled to be paid; and
ii.
A completed Final or Interim Report
8.4. Reporting Requirements
(a)
The Department
i.
will maintain regular contact with the Grantee to monitor implementation of
this Deed including site visits as required by the Department;
ii.
may use any information it receives from the Grantee for any purpose
subject to compliance with its confidentiality obligations under this Deed.
9. Intellectual Property
9.1. Subject to clause 9.4, Intellectual Property in all Project Material vests in the Grantee. The
Grantee grants the Department and will ensure that relevant third parties grant (to the
extent necessary) a royalty free, non-transferable, irrevocable licence to use the Project
Material and any Background IP belonging to that party for the purpose of the parties
fulfilling the Objectives and their obligations and objectives under this Deed.
9.2. Nothing in this clause affects ownership in Background IP.
9.3. The Grantee warrants that the Department’s use of the Project Material or Background IP
will not infringe the intellectual property rights of any person. The Grantee indemnifies the
Department, and will keep the Department indemnified from and against any loss, costs,
expenses, demands or liability, arising out of a Claim by a third party against the
Department alleging that the Project Material or Background IP infringes any intellectual
property rights
9.4. Intellectual Property in all Reports vests in the Department immediately upon creation of
those Reports.
10. Confidential Information
10.1. If any Report contains Confidential Information of the Grantee, the Grantee should mark
the relevant parts of the Report accordingly and the Department agrees those parts of the
Report will be treated as Confidential Information.
10.2. Each party as the recipient of Confidential Information must in relation to the Confidential
Information of the other party:
(a)
keep it confidential;
(b)
use it only as permitted under this Deed;
(c)
not copy it or any part of it that is in material form other than as strictly necessary
and must mark any such copy ‘Confidential – ([Name of Discloser]);
(d)
implement security practices against unauthorised copying, use and disclosure;
(e)
immediately notify the Discloser if the Recipient becomes aware of any
unauthorised copying, use or disclosure in any form; and
(f)
cooperate with the Discloser in any reasonable action it takes to protect the
Confidential Information.
State of NSW
Department of Industry, Skills & Regional Development
11
New Frontiers Cooperative Drilling round 2 Funding Deed.
10.3. The Grantee must promptly:
(a)
comply with any request by the Discloser to return or destroy any or all copies of
Confidential Information; and
(b)
upon expiry or termination of this Deed, return to the Discloser all Confidential
Information provided to it by the Discloser,
except that the Recipient may in good faith keep one copy of Confidential Information in
safe custody on a confidential basis where needed for legal purposes.
10.4. A Recipient may disclose Confidential Information to only those of its employees, directors,
officers, subcontractors, agents and legal, financial or other professional advisers who have
a need to know the information for the purposes of this Deed, provided that, prior to the
disclosure, the Recipient:
(a)
ensures that those persons are made aware of the confidential nature of the
Confidential Information; and
(b)
procures an assurance that any such Confidential Information will be kept
confidential.
10.5. A Recipient may disclose Confidential Information to the extent that it is required to be
disclosed by law, provided that:
(a)
the Recipient must, to the extent reasonably practicable, give prior notice to the
Discloser of the proposed disclosure with full details of the circumstances and the
information to be disclosed;
(b)
the Recipient must postpone any disclosure required by law for as long as the
Recipient is able to, without prejudicing the Recipient’s own position; and
(c)
the Recipient acknowledges that the Discloser, at its cost and expense, is entitled to
make representation to the relevant court, tribunal or other body seeking or ordering
disclosure as to whether the Confidential Information should be disclosed.
11. Privacy
11.1. The Grantee will:
(a)
ensure that Personal Information that is provided by the Department or collected by
the Grantee under or in connection with this Deed is used only for the purposes of this
Deed and is protected against loss and against unauthorised access, use, modification or
disclosure or against other misuse;
(b)
not disclose any such Personal Information without the written consent of:
i.
the individual to whom the Personal Information relates; or
ii.
the Department,
unless otherwise required or authorised by law;
(c)
comply with the Information Protection Principles applying to NSW public sector
agencies under the Privacy and Personal Information Protection Act 1998 (NSW) when
doing any act or engaging in any practice in relation to Personal Information as if it were an
agency directly subject to that Act; and
(d)
include equivalent requirements regarding Personal Information (including this
clause 11) in any subcontract entered into for the provision of any of the Activities under
this Deed.
State of NSW
Department of Industry, Skills & Regional Development
12
New Frontiers Cooperative Drilling round 2 Funding Deed.
12. Public Announcements and Acknowledgement
12.1. The Grantee must:
(a)
give prior written Notice to the Department of any public announcement regarding
the Grant or the Project; and
(b)
if requested by the Department, acknowledge the Grant and the support of the
Department, as directed by the Department from time to time:
i.
in any public statements about the Project;
ii.
on the home page of any web site established in connection with the
Project; and
iii.
on any equipment or other facility funded wholly or in part by the Grant.
12.2. The Department may publicise the awarding of the Grant at any time after it is awarded
and include:
(a)
the name of the Grantee;
(b)
the amount of the Grant;
(c)
the title and brief description, including outcomes, of the Project; and
(d)
the benefits accruing to the Grantee as the result of the provision of the Grant.
12.3. If requested to do so, the Grantee must obtain written authorisation from relevant Project
partners or contractors authorising the Department to name those Grantees in any media
statements, or in the Department’s annual report.
13. Insurance
13.1. The Grantee must:
(a)
maintain during the Term the Insurance Policies (and any other policies reasonably
required to cover the Grantee’s liabilities under this Deed) on terms that are reasonably
satisfactory to the Department; and
(b)
provide copies of the policies in (a) above to the Department if requested.
13.2. Where, in the course of carrying out an Activity, the Grantee seeks to rely on professional
advice from a third party, the Grantee must ensure that the third party obtains and
maintains a professional indemnity insurance policy for a minimum sum of $5 million in
respect of any one claim.
13.3. The Grantee must not do, permit or suffer any act, matter or thing or omission whereby
any of the policies referred to in this clause may be vitiated, rendered void or voidable.
13.4. Without limitation to clause 13.1, the Grantee warrants that it has and will maintain
appropriate insurance to cover any liability it may incur in relation to this Deed.
14. Indemnities
14.1. The Grantee must indemnify and keep indemnified the Department, the Crown in right of
the State of New South Wales and their officers, employees and agents from and against
any loss (including legal costs and expenses on a solicitor/own client basis) or liability
incurred or suffered by, or made against, any of those indemnified arising directly or
indirectly from any Claim by any person as a result of or in connection with:
(a)
use of the Grant Funds or the use of any outcomes from the Project;
(b)
any breach of this Deed by the Grantee;
(c)
any unlawful or negligent act or omission by the Grantee or its subcontractors in
connection with this Deed including but not limited to the Activities;
State of NSW
Department of Industry, Skills & Regional Development
13
New Frontiers Cooperative Drilling round 2 Funding Deed.
(d)
any illness, injury or death of any person caused or contributed to by the Grantee or
its subcontractors in connection with this Deed;
(e)
any loss or damage to real or personal property caused or contributed to by the
Grantee or its subcontractors in connection with this Deed; or
(f)
any act or omission by the Grantee or its subcontractors in connection with this
Deed that is in infringement of any Intellectual Property, or privacy rights of the
Department or any third party.
14.2. The Grantee’s liability to indemnify the Department under this clause will be reduced
proportionately to the extent that any negligent or unlawful act or omission by the
Department, its officers, employees or agents directly contributed to the relevant loss or
liability.
14.3. No party will be liable to the other party for Consequential Loss arising under or in respect
of the Deed whether in contract, tort (including negligence), statute or any other cause of
action.
14.4. The Grantee’s liability to indemnify the Department under this clause does not exclude or
reduce the liability of, or benefit to, a party that may arise by operation of the common
law, statute or the other terms of this Deed.
15. Termination
15.1. This Deed will end on the earlier of:
(a)
the Department providing the Grant and the Grantee completing the Activities
under the Application;
(b)
termination by either party by giving notice to the other party where the other party
has breached any material provision of this Deed and that other party has not rectified the
breach within fifteen Business Days of receiving notice requiring it to do so;
(c)
termination by the Department at any time by notice in writing to the Grantee, for
its convenience including but not limited to a change in government policy, without the
need to give reasons, and with effect from the date stated in the notice;
(d)
termination by the Department, without incurring any liability, immediately upon
notice in writing to the Grantee if the Grantee engages in any conduct that causes or may
cause imminent and serious risk to the health or safety of a person, or to the reputation,
viability or profitability of the Project or the Department’s funding of the Project; or
termination by the Department, without incurring any liability, by notice to the Grantee
with immediate effect if the Grantee becomes insolvent, makes an assignment for the
benefit of creditors, is the subject of winding up proceedings whether voluntary or
compulsory otherwise than for the purpose of reconstruction and amalgamation or a
receiver is appointed to the Grantee by a court.
Without limitation to clause 15 the Department may, by written notice to the Grantee,
reduce the amount of the Grant with effect from the date stated in the notice.
15.2. Upon receipt of a notice of termination or reduction under this clause 16 the Grantee
must:
i.
take all available steps to minimise loss resulting from that termination; and
ii.
continue work on any part of the Project not affected by the notice.
15.3. If this Deed is terminated by the Department under clause 15 (c) (termination for
convenience) the Department will be liable for reasonable and unavoidable costs incurred
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Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
by the Grantee that are directly attributable to the termination and which can be
evidenced through appropriate records, provided that:
(a)
the Grantee will have no Claim for Consequential Loss, whether under the Deed or
otherwise; and
(b)
the Grantee will not be entitled to payment or compensation which would together
exceed the Grant which would have been payable under this Deed.
15.4. The Grantee must ensure that any subcontract which it enters into in connection with the
Project includes a clause that is equivalent to this clause 15.
15.5. Termination by the Department under this clause 15 or under any other clause of this Deed
is without prejudice to any other rights it may have at law.
16. Notices
16.1. The Department’s Contact Person will be the primary liaison and contact officer between
the Department and the Grantee, and the Department’s Contact Person is authorised to
give and receive Notices on the Department’s behalf.
16.2. Unless otherwise stated in this Deed, all Notices to be given under this Deed must be in
writing, and hand-delivered, posted, faxed or emailed to the contact details for the Contact
Person specified in the Details or as otherwise notified in writing.
16.3. Any Notice is deemed to be received by the receiving party as follows:
(a)
if hand delivered, the day on which it is left at the relevant address;
(b)
if sent by regular post within Australia, four (4) Business Days after the day on which
it is posted;
(c)
if sent by email, on entering the information system of the recipient party,
provided that any such Notices which are hand-delivered or emailed, are delivered before
5.00pm on a Business Day, otherwise they will be deemed to be received on the next
Business Day.
16.4. Any such mode of service will be in all respects valid and effectual notwithstanding that the
party on whom service is effected may be in liquidation, bankruptcy or wound up and
notwithstanding any other matter or event whatsoever.
16.5. Notices given under the following clauses of the Deed must not be sent by email: clause 7
GST, clause 13 Insurance, clause 14 Indemnities and clause 15 Termination.
17. Work Health and Safety
17.1. The Grantee acknowledges and warrants that the Work Health and Safety (Mines) Act
2013, Work Health and Safety (Mines) Regulations, Work Health and Safety Act 2011 and
the Work Health and Safety Regulations 2011 and any associated legislation (Safety Law)
may apply to the Activities carried out pursuant to this Deed.
17.2. The Grantee agrees to comply with all its requirements in accordance with the applicable
Safety Law, including the requirement to consult with any other duty holder.
18. General
18.1. Survival
(a) The following clauses survive termination or expiry of this Deed: clause 9 Intellectual
Property, clause 10 Confidential Information, clause 11 Privacy, clause 13 Insurance,
clause 14 Indemnities, clause 15 Termination, this clause 18 General and any other
clause which by its nature is intended to survive this Deed.
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Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
18.2. Subcontractors
(a)
The Grantee:
i.
remains fully responsible for the performance of the Activities if it
subcontracts the performance of any part of those Activities; and
ii.
must engage any subcontractors under written agreement on terms
consistent with this Deed.
18.3. Conflict of Interest
(a)
The Grantee warrants that no conflict of interest:
i.
existed as at the time of its application for the Grant;
ii.
exists at the time of executing this Deed;
(b)
The Grantee must not carry on or be involved in any capacity in an activity or
business, which may conflict with, or adversely affect, the Grantee’s ability to carry out its
obligations under this Deed; and
(c)
The Grantee agrees to immediately notify the Department in writing if a risk of such
a conflict arises.
18.4. Entire Agreement
(a)
This Deed states all the express terms agreed by the parties as to the matters
referred to in this Deed. It supersedes all prior contracts, obligations, representations,
conduct and understandings.
18.5. Variation
(a)
This Deed may only be varied by a deed in writing signed by the parties.
18.6. Inconsistency
(a)
If there is any inconsistency between provisions then the order of precedence will
be:
i.
the Details;
ii.
the Grantee’s Methodology and Project details described in the Application;
iii.
these Terms; and
iv.
Reporting Requirements in clause 8.
18.7. Negation of employment, partnership or agency
(a)
This Deed does not create a relationship of agency, partnership, and/or employment
between the parties.
(b)
The Grantee must not represent itself as being an employee or agent of the
Department or as otherwise able to bind or represent the Department.
18.8. Waiver
(a)
If a party fails to exercise any of its rights under this Deed, or delays exercising those
rights, that failure or delay will not operate as a waiver of those rights or any future rights
or in any respect estop a party from relying on the terms of this Deed to their full force and
effect.
(b)
Any waiver by a party of a breach of this Deed must be in writing and will not be
construed as a waiver of any further breach of the same or any other provision.
18.9. Assignment
(a)
The Grantee must not assign or novate its obligations or interests under this Deed,
without the prior written consent of the Department.
18.10.
Counterparts
State of NSW
Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
(a)
This Deed may be signed in any number of counterparts which taken together will
constitute one instrument.
18.11.
Governing Law
(a)
The laws of New South Wales govern this Deed and the parties submit to the nonexclusive jurisdiction of the courts in that State.
18.12.
Joint and Several
(a)
If a party consists of more than one person, this document binds them jointly and
each of them severally.
19. Dispute Resolution
19.1. The parties agree not to initiate legal proceedings in relation to a dispute unless they have
tried and failed to resolve the dispute by negotiation.
19.2. The parties agree to continue to perform their respective obligations under this Deed
where a dispute exists.
19.3. If a dispute arises between the parties in connection with this Deed, then within 10
Business Days of a party notifying the other party of a dispute, a representative of
appropriate seniority and responsibility from each party must meet and use all reasonable
endeavours acting in good faith to resolve the dispute within 10 Business Days of meeting.
19.4. The procedure for dispute resolution does not apply to action relating to termination or
urgent litigation.
State of NSW
Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
D.
Execution clauses
Department
Signed, sealed and delivered for and on behalf of the Crown in right of the State of New South Wales
acting through the Department by its authorised signatory but not so as to incur personal liability:
Before
Signature
Signature of Witness
Click here to enter Name
Name of Witness
Title
Address of Witness
Date
Date
Grantee (Company)
Signed, sealed and delivered for and on behalf of Click here to enter text by:
Signature of Director (1)
Signature of Director (2) or Company
Secretary
Name of Director (1)
Name of Director (2) or Company Secretary
Date
Date
State of NSW
Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
Grantee (Authorised Signatory)
By entering into this Deed the signatory warrants that the signatory is duly authorised to execute
this Deed on behalf of Click here to enter text .
Signed, sealed and delivered for and on behalf of Click here to enter text by its authorised signatory:
Before:
Signature of authorised signatory
Signature of Witness
Name of authorised signatory
Name of Witness
Date
Address of Witness
Grantee (Sole Director Company)
Signed, sealed and delivered for and on behalf of Click here to enter text by its sole Director and
Company Secretary:
Before:
Signature of Director and Company secretary
Signature of Witness
Name of Director and Company Secretary
Name of Witness
Date
Address of Witness
State of NSW
Department of Industry, Skills & Regional Development
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New Frontiers Cooperative Drilling round 2 Funding Deed.
Grantee (Partnership)
By entering into this Deed the signatory warrants that the signatory is duly authorised to execute
this Deed on behalf of Click here to enter text .
Signed, sealed and delivered for and on behalf of Click here to enter text by its authorised signatory:
Before:
Signature of partner
Signature of Witness
Name of partner
Name of Witness
Date
Address of Witness
E.
Application: Invitation to Apply
(scan the full Invitation to Apply together with this Deed and include as one document for the final
signed Funding Deed)
State of NSW
Department of Industry, Skills & Regional Development
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