Other legal matters

Relationship between the parties
- 27.1 This Agreement does not make you our partner, agent or employee.
- 27.2 You must not misrepresent your relationship with us.
- 27.3 Neither party is authorised to legally commit or represent the other party in any way.
- 27.4 Neither party may attempt to bind or represent the other in any way.
Subcontractors
- 28.1 You agree not to subcontract any of your obligations under this Agreement without first getting our written consent.
- 28.2 If we give our consent, we may impose any conditions we consider appropriate, and you must comply with them.
- 28.3 You are not relieved of your obligation to carry out the Activity as required by this Agreement merely because you subcontract any part of the Agreement.
- 28.4 You agree to ensure that any subcontracts entered into by you for the purposes of this Agreement are consistent with the obligations binding on you under this Agreement.
- 28.5 If we terminate or reduce the scope of this Agreement under either clauses 22.1 or 23.1, you must exercise any right of termination or reduction you have against any of your subcontractors.
Use of Specified Personnel
- 29.1 If we give you written notice, you must remove any personnel, including Specified Personnel, specified in that notice, and replace such person with other Specified Personnel satisfactory to us.
- 29.2 If any Specified Personnel is unavailable or unable to undertake the services, you must notify us in writing and you must replace that person with another Specified Personnel agreed by us.
Entire agreement
- This Agreement comprises the entire agreement between the parties about the subject matter of this Agreement. It supersedes all prior communications, negotiations and agreements, whether oral or written, about the subject matter of this Agreement.
Governing law
- This Agreement is governed by the law of the Australian Capital Territory.
Variation of this Agreement
- This Agreement may only be varied in writing, signed by both parties.
Enforcement of part does not prevent enforcement of another part
- We are not prevented from enforcing any part of this Agreement merely because:
  - (a) we did not enforce that part on an earlier occasion; or
  - (b) we do not enforce another part.
You must not assign your rights
- 34.1 You must not assign your rights under this Agreement without first getting our written consent.
- 34.2 In this clause 34, “assign” includes novate or transfer, in whole or in part.
Effect of invalidity of part
- If part of this Agreement is found to be invalid, the rest of the Agreement continues in effect as if the invalid part were excluded.
Certain clauses continue after this Agreement ends
- 36.1 The termination or expiry of this Agreement, for any reason, does not affect:
  - (a) the continued operation of the following clauses:
    - (i) clause 5 (Your obligation to keep records and provide reports);
    - (ii) clause 9 (Spending the Funding);
    - (iii) clause 11 (Repaying the Funding);
    - (iv) clause 12 (GST);
    - (v) clause 14 (Intellectual Property Rights);
    - (vi) clause 15 (Safekeeping and return of Commonwealth Material);
    - (vii) clause 16 (Privacy issues);
    - (viii) clause 17 (Confidential Information)
    - (ix) clause 20 (Indemnity); or
    - (x) clause 21 (Insurance); or
  - (b) the continued operation of any other clauses that, expressly by their nature, survive termination or expiry.
Priority of documents
- 37.1 If there is any conflict or inconsistency, the provisions in documents forming part of this Agreement take priority in the following order:
  - (a) the Supplementary Conditions (if any);
  - (b) the Terms and Conditions;
  - (c) the Schedule;
  - (d) the Letter of Funding
Notices
- 38.1 A notice under this Agreement is ineffective unless it is in writing.
- 38.2 Also, a notice under this Agreement is ineffective unless it meets the following requirements:
  - (a) where you give it to us—you address it, and forward it, to the address specified in Item L of the Schedule, or as we otherwise direct;
  - (b) where we give it to you—we address it, and forward it, as specified in Item L of the Schedule, or as you otherwise direct; and
  - (c) in either case, it is signed by or on behalf of the person giving it.
- 38.3 A notice may be given:
  - (a) by hand delivery; or
  - (b) by prepaid post; or
  - (c) by electronic transmission, including by email or by facsimile.
- 38.4 A notice is treated as having been given:
  - (a) if delivered by hand—on delivery to the relevant address;
  - (b) if sent by post—on delivery to the relevant address, or 5 Business Days after it was posted, whichever is earlier;
  - (c) if transmitted electronically—when received by the addressee.
Interpretation: General
- 39.1 In this Agreement:
  - (a) headings are for convenience only and have no effect on interpretation; and
  - (b) footnotes are for information only and are not part of the Agreement; and
  - (c) a provision is not to be interpreted against a party merely because that party proposed it.
- 39.2 Also in this Agreement, unless the contrary appears:
  - (a) where a word or phrase has a defined meaning, any grammatical form of that word has a corresponding meaning; and
  - (b) a reference to legislation or a legislative provision includes a reference to any amendment, substitution or re-enactment of that legislation or provision; and
  - (c) the singular included plural and vice versa.
Defined terms
- 40.1 In this Agreement, unless the contrary appears:
  - (a) we or us (and grammatical variations such as ours) means the Commonwealth of Australia represented by the Department(s) or Agency(ies) specified in the Agreement and includes our officers, delegates, employees, other contractors and agents;
  - (b) you (and grammatical variations such as your) means the legal entity set out in the Schedule, and includes your officers, employees, agents, volunteers, subcontractors, and successors.
- 40.2 Also in this Agreement, unless the contrary appears:
  - Activity means any tasks, activities, services or other purposes for which this funding is provided. The Activity is described in Item B of the Schedule.
  - Activity Period means the period specified in Item B of the Schedule during which the Activity must be completed.
  - Agreement means the Letter of Funding, the Terms and Conditions, including the Supplementary Conditions, the Schedule, and any documents incorporated by reference into this document or the Schedule.
  - Agreement Material means all Material:
    - (a) which you bring into existence in performing this Agreement; and
    - (b) copied or derived from Material referred to in paragraph (a).
  - Asset⁴ means any item of personal, real or intangible⁵ property, with a price or value of $10,000 or more, inclusive of GST, and which has been created, acquired or leased wholly or in part with the Funding, except Intellectual Property Rights and licences provided for in clause 14.
  - Business Day means any day other than a Saturday, Sunday, public or bank holiday in the place where the relevant act is to be done.
  - Commonwealth Material means any Material that we give you for the purposes of this Agreement or that is copied or derived from that Material, but does not include Agreement Material.
  - Commencement Date means the date written on the execution page of this Agreement, or if no date or more than one date is written there, then the date on which the Agreement was signed by the last party to do so.
  - Completion Date means the date specified in the Schedule, or the day after you have done, to our satisfaction, all that you are required to do under this Agreement, whichever is the later.
  - Existing Material means all Material in existence before the execution of this Agreement or developed independently of this Agreement that is:
    - (a) incorporated in the Agreement Material; or
    - (b) supplied with, or as part of, the Agreement Material; or
    - (c) required to be supplied with, or as part of, the Agreement Material.
  - Funding means the money, or any part of it, paid to you as set out in Item C of the Schedule.
  - GST and related terms - In clause 12, GST, Adjustment Note, Input Tax Credit, Recipient Created Tax Invoice, Tax Invoice, and Taxable Supply have any of the meanings used in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other relevant legislation, regulations, or rulings by the Australian Taxation Office.
  - Intellectual Property Rights means all copyright, rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered designs, and other rights resulting from intellectual activity in industrial, scientific, literary or artistic fields, but does not include Moral Rights.
  - Material includes documents, equipment, software (including source code and object code versions), goods, information and data stored by any means including all copies and extracts of them.
  - Moral Rights includes the following rights of an author of copyright Material:
    - (a) the right of attribution of authorship; and
    - (b) the right of integrity of authorship; and
    - (c) the right not to have authorship falsely attributed;
  - Program means the program referred to in Item A of the Schedule.
  - Schedule means the schedule to this Agreement. It may include annexures and incorporate other documents by reference.
  - Secret and Sacred Material means all information and knowledge of special religious, spiritual or customary significance considered to be secret, exclusive or restricted by an Aboriginal person or according to Aboriginal Tradition. Aboriginal and Torres Strait Islander Heritage Protection Act 1984
  - Specified Acts means any of the following acts or omissions by or on behalf of the Commonwealth:
    - (a) using, reproducing, adapting or exploiting all or any part of the Agreement Material, with or without attribution or authorship;
    - (b) supplementing Agreement Material with any other Material;
    - (c) using the Agreement Material in a different context to that originally envisaged,
  - but does not include false attribution of authorship.
  - Specified Personnel means the personnel, if any, (whether your officers, employees, subcontractors or volunteers of you) required to undertake the Activity or any part of the Activity as set out in Item J of the Schedule, or such personnel replaced in accordance with clause 29.
  - Supplementary Conditions means terms & conditions in annexures to the Schedule.
  - Terms and Conditions means all clauses of this document.

⁴ The definition of Asset does not include the provision for minor capital or capital upgrade purchases.

⁵ Intangible assets are those assets that lack a physical presence, but are constituted by a right enforceable in a court of law or equity. Intellectual property is an example of intangible property.

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