DEED OF AGREEMENT
BETWEEN
AUSTRALIAN RESPIRATORY COUNCIL (ARC)
AND
[insert name of institution]
IN RELATION TO
AUSTRALAIN RESPIRATORY
COUNCIL ANN WOOLCOCK FELLOWSHIP FOR [insert year]
THIS DEED is made on the ………. day
of …………………… 200….
BETWEEN
AUSTRALIAN RESPIRATORY COUNCIL
(ABN 11883 368 767
)
of:GPO Box 102
SYDNEY
NSW 2001
(ARC)
AND
Institution:……………………………………………………..
ABN:……………………………………………………..
of (address):……………………………………………………..
……………………………………………………..
……………………………………………………..
……………………………………………………..
(“Institution”)
WHEREAS:
A. ARC has as its objects the funding
of training and research in the area of respiratory and community health,
particularly in relation to Tuberculosis. Income derived from donations
and investments is used to support these activities. One of these activities
is the ARC Ann Woolcock Fellowship (the “Fellowship”) which is awarded
from time to time as determined by the ARC Board on the recommendation
of the Research Committee. The objectives of the Fellowship include
providing opportunities within biomedical, clinical, public health and/or
health services research, and other research of relevance to human health,
to encourage people of outstanding ability to develop research as a
significant component of their career.
B.The purpose of the Fellowship is
to provide assistance, in such cases and subject to such conditions
as the ARC Board may determine:
to Departments of the Commonwealth
or of a State or Territory engaged in medical research; and
to Universities for the purposes
of medical research; and
to other institutions engaged
in medical research,
and subject to agreement by the recipient,
to comply with guidelines issued by
the NHMRC relating to ethical issues
in the conduct of medical and health research.
C. ARC administers the Funding of the
Fellowship.
D. The Institution has applied for
funding under the Fellowship to undertake the Project.
E. ARC has agreed to provide the
funding to the Institution for the Project provided the Institution
executes this Deed and complies with the legal obligations on the Institution
to use the Funds in support of the objectives of the Fellowship.
INDEX
1. INTERPRETATION
2. ADMINISTRATION OF FELLOWSHIP
3. FUNDING AND CO-FUNDING
4. USE OF FUNDS
5. ACCOUNTABILITY OF INSTITUTION FOR
FUNDS
6. REPORTING
7. EVALUATION OF THE FELLOWSHIP
8. INSPECTION OF DOCUMENTS
9. FELLOWSHIP MATERIAL AND INTELLECTUAL
PROPERTY
10. EQUIPMENT AND ANIMALS
11. MOBILITY
12. ACKNOWLEDGEMENT AND PROMOTION
13. FELLOWSHIP RECIPIENT
14. TERMINATION FOR CONVENIENCE
15. TERMINATION AND SUSPENSION
16. RECOVERY OF FUNDS
17.INDEMNITY
18. INSURANCE
19. USE OF INFORMATION
20. NEGATION OF EMPLOYMENT, PARTNERSHIP
AND AGENCY
21. COMPLIANCE WITH LAW
22. CONFLICT OF INTEREST
23. PROTECTION OF PERSONAL INFORMATION
24. DISPUTE RESOLUTION
25. NOTICES
26. RESPONSIBLE OFFICER
27. ASSIGNMENT AND OTHER ENCUMBRANCES
28. EXECUTIVE OFFICER MAY ACT
29. SURVIVAL OF PROVISIONS
30. TAXES, DUTIES AND CHARGES
ANNEXURE A - INSTITUTIONAL APPROVALS
AND COMPLIANCES
SCHEDULE
ITEM A DESCRIPTION OF FELLOWSHIP (subclause
1.1)
ITEM BFELLOWSHIP RECIPIENT (subclause
1.1)
ITEM C PERIOD OF FUNDING (subclause 1.1)
ITEM D FELLOWSHIP PURPOSES (subclause
1.1, clause 2 and subclause 11.2)
ITEM E FUNDS, FUNDING (subclause 1.1
and clause 3)
ITEM F APPROVED BUDGET (subclause 1.1
and clause 4)
ITEM GCO-FUNDING (subclause 1.1 and clause
3)
ITEM H REPORTING (clause 6)
ITEM I ARC OWNERSHIP (subclause 10.1)
ITEM J NOTICES (clause 25)
THIS DEED PROVIDES that the parties be
bound by the conditions of this Deed.
IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In this Deed, unless the contrary
intention appears:
“Administrative Costs”
means any costs associated with the performance of the Fellowship not
identified in the Approved Budget including overheads, staffing, administrative
support, information technology services, premises, resources and capital
purchases;
“Annual Financial Report”
means a statement of receipts and expenditure for each calendar year
as specified in Clause 6.1;
“Application”
means the application for Fellowship funding from ARC;
“Approved Budget”
means the budget approved by ARC, as specified
in Item F;
“Australian Accounting Standards”
refers to the standards of that name maintained by the Australian Accounting
Standards Board created by section 226 of the Australian Securities
and Investments Commission Act 2001
(Cth);
“Chief Financial Officer”
means the person with principal responsibility for
accounting and financial management
within the Institution, or another person
nominated by the Institution who
is a qualified public accountant and member of one of the following
organisations, CPA Australia, the Institute of Chartered Accountants,
or the National Institute of Accountants;
“Co-funding”
means the amount, if any, specified in Item G, being the contribution
by the Institution or a third party for the Project;
“Executive Officer”
means the Chief Executive Officer of ARC or a person duly authorised
to exercise the powers of the Executive Officer, and includes a person
for the time being occupying that position;
“Fellow” means the recipient
of an ARC Ann Woolcock Fellowship;
“Fellowship” means the
ARC Ann Woolcock Fellowship;
“Fellowship Material”
means all material created, provided or required to be provided as part
of or for the purposes of the Fellowship, and includes (without limitation)
any material derived from such material and any documents, equipment,
information or data stored by any means;
“Fellowship Purposes”
means the purposes for which the Funds are provided as specified in
the Application identified in Item D;
“Fellowship Recipient”
means the person specified in Item B in respect of whom the funds are
provided;
“Fellowship Support Package”
means that part of the Funds to be provided by ARC for the purpose of
funding the Fellowship Recipient, as may be identified in the Approved
Budget set out in Item F;
“Financial Acquittal”
means a statement of receipts and expenditure as specified in Clause
6.3;
“Funds”
means funds provided by ARC for the Project, as specified in
Item E;
“Information Privacy Principles”
means the Information Privacy Principles in the Privacy Act 1988
(Cth);
“Institution”
means the institution referred to at the commencement of this Deed;
“Institutional Approvals”
means the documented clearance requirements and compliances specified
at Annexure A;
“Intellectual Property”
includes all copyright and neighbouring rights, 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;
“Item”
refers to an item specified in the Schedule;
“New Institution”
means another institution or body to which a Fellow elects to move,
provided the Fellow is intending to continue with the Project (or part
of the Project) at that other institution or body;
“NHMRC”
means the National Health and Medical Research Council as defined and
established by the National Health and Medical Research Council
Act 1992 and any enactments amending the Act;
“Parties”
means the two parties to this Deed of Agreement;
“Period of Funding”
means the time period set out in Item C;
“Personal Information”
means information or an opinion (including information or an opinion
forming part of a database), whether true or not, and whether recorded
in a material form or not, about a natural person whose identity is
apparent, or can reasonably be ascertained, from the information or
opinion; (this definition has been taken from section 6 of the Privacy
Act 1988 (Cth));
“Project”
means a research project or body of research work that is the subject
of an Application as specified in Item D;
“Responsible Officer”
means the officer appointed by the Institution for the purposes of the
administration of the Funds;
“Schedule”
and “Schedules” means the schedule or schedules (as the case
may be) to this Deed;
“Transfer Application”
means an application to ARC made by a Fellow or the Institution, for
approval to transfer the whole or part of the Funds, as applicable,
to a New Institution;
“Working Day”
means any day, but does not include Saturdays, Sundays, public holidays
or any other day on which the Institution is closed for business to
the public.
1.2 Except where the context otherwise
requires:
(a) words importing a gender include
any other gender;
(b) words in the singular number
include the plural and words in the plural number include the singular;
(c) clause headings are for convenient
reference only and have no effect in limiting or extending the meaning
of the provisions to which they refer;
(d) where any word or phrase
is given a defined meaning, any other form of that word or phrase has
a corresponding meaning; and
(e) a reference to a person or
body includes a partnership and a body corporate or body politic.
1.3 The Schedule and any document
attached to it by reference or otherwise shall be deemed to be substantive
parts of, and be construed in accordance with, this Deed.
1.4 This Deed may be executed in
any number of counterparts. All of such counterparts taken together
shall be deemed to constitute one and the same Deed.
1.5 Where any conflict arises between
the terms and conditions contained in the clauses of this Deed and any
part of the Schedule (and attachments, if any), the terms and conditions
of the clauses prevail.
1.6 Where any conflict arises between
any part of the Schedule and any part of an
attachment, the Schedule prevails.
1.7 Where the Institution consists
of more than one person, those persons agree to be jointly and severally
bound by the terms of this Deed.
1.8 The laws of the State of New
South Wales apply to this Deed.
1.9 This Deed comprises the entire
agreement between the parties in relation to its subject matter.
1.10 No variation of this Deed shall
be legally binding on either party unless executed in the same manner
as this Deed.
1.11 If a party does not exercise
(or delays in exercising) any of its rights under this Deed or at law,
that failure or delay does not operate as a waiver of those rights.
1.12 A single or partial exercise by
a party of any of its rights under this Deed or at law
does not prevent the further exercise
of any right.
2. ADMINISTRATION OF FELLOWSHIP
2.1 The Institution shall ensure
that spending in relation to the Fellowship occurs only within the Period
of Funding.
The Institution shall, unless
otherwise specified at Item D:
(a) administer the Fellowship
in accordance with the Fellowship Purposes and with Item A and, in particular;
i.comply with the objectives
of the Fellowship as set out in the recitals to this Deed;
ii. comply with the objectives
for the Fellowship specified in the Application identified at Item D;
iii. undertake the activities
specified in the Application identified at Item D;
iv. endeavour in good faith
to achieve the expected outcomes for the Fellowship specified in the
Application identified at Item D and support the objectives of the Fellowship;
and
v.notify ARC immediately of any
expected or actual delay or
suspension (over three (3)
months) in the progress of the Fellowship;
provide the Fellowship recipient
with the necessary assistance, facilities and services for the efficient
conduct of the Fellowship;
meet the normal overhead and
operating expenses of the Institution as required to support the Fellowship
recipient’s research;
(d)meet the expenses of the amount
of any salary and other entitlements or
conditions of service payable
as a result of an enterprise or other agreement which is in excess of
the amount of the Fellowship Support Package levels provided for under
the Fellowship;
(e)meet the expenses of the amount
of any stipend or other entitlements payable to Fellows as stipend or
allowances provided for under the Fellowship;
(f) ensure that all relevant Institutional
Approvals set out in Annexure A are
obtained and maintained as required
for the duration of the Fellowship and the Institution must confirm
this in every Progress Report ;
(g) ensure that any machine-readable
data arising from a Fellowship involving research relating to the social
sciences is lodged with the Australian Consortium for Social and Political
Research Inc. (ACSPRI) or any other appropriate archive for secondary
use by other researchers. This should normally be done within two years
of the conclusion of any fieldwork relating to the Fellowship research.
If the Fellow is not intending to do so within the two-year period,
s/he should include the reasons in the Fellowship’s Final Report;
and
(h) otherwise comply strictly with
the terms and conditions of this Deed.
3. FUNDING AND CO-FUNDING
3.1 Subject to compliance by the
Institution with this Deed, ARC agrees to pay the Funds to the Institution
in accordance with the payment schedule specified in Item E.
3.2Unless otherwise specified in
Item E, payment of the Funds will be made quarterly in advance in respect
of all Approved Budget components.
3.3 The amounts to be contributed
by ARC for or in connection with the Fellowship shall not exceed the
Funds.
3.4 Payment of the Funds will not
commence until satisfactory evidence is provided to ARC that all Institutional
Approvals required for research under the Fellowship have been obtained
by the Institution. Where any Institutional Approvals necessary for
the research are withdrawn or not renewed during the Period of Funding,
the Institution must notify ARC as soon as practicable or within one
(1) month after the withdrawal or expiration of the Institutional Approval
and ARC may terminate this Deed or suspend or terminate payment of the
Funds for the Fellowship pursuant to clause 15.
3.5 Payment of the Funds will only
commence after the Institution has notified ARC of the proposed date
of commencement for the Fellowship. The Fellowship must commence by
the final date of commencement specified in Item C, or Funding will
be terminated unless the Institution has obtained the written approval
of ARC for the continuation of Funding, prior to the final date of commencement.
3.6Entitlement of Fellowship recipients
to allowances, bridging support, reimbursement of expenses and reimbursement
for specified leave, if any, from Fellowship funds will be specified
at Item E.
3.7Entitlement of Fellowship recipients
to additional earnings and additional awards, where relevant, are specified
at Item A.
3.8 If there is any delay or suspension
or an expectation or anticipation of a delay or
suspension (of more than six (6)
months) in the commencement or progress of the Fellowship, the Institution
must notify ARC as soon as possible after becoming aware of the delay
or expected delay. The Institution must request and obtain ARC’s written
approval for the continuation of the Fellowship. In the event of a delay
or expected delay to the commencement or progress of the Fellowship,
ARC may suspend, reduce or terminate payment of the Funds for the Fellowship
or terminate this Deed pursuant to clause 15. ARC, pursuant to clause
16, may recover any Funds not expended in accordance with this Deed
or that remain unexpended.
3.9 If Co-funding has been identified
in the Approved Budget or specified in Item G and that Co-funding;
(a)is not arranged within the time-frame
specified in the Approved Budget;
(b)is reduced; or
ceases at any time earlier
than the time specified in the Approved Budget or at Item G,
ARC may, at its absolute discretion,
by notice in writing to the Institution, terminate the Deed or terminate
or reduce the scope of the Fellowship pursuant to clause 15.
4. USE OF FUNDS
4.1 The Institution shall not use
the Funds for any purpose other than funding the Fellowship in respect
of the Fellowship Recipient in accordance with the Application and the
Approved Budget specified in Item F.
4.2 The Institution shall deposit
all Funds into a bank account controlled solely by the Institution and
keep proper accounts and records of its receipts and use of the Funds.
The Institution must use any apportioned interest earned on the Funds
only for the purposes of the Fellowship.
4.3The Institution shall not use the
Funds for the purposes of expenditure on any
Administrative Costs associated with
the Fellowship or associated with any research conducted by the Fellowship
Recipient under the Fellowship.
4.4 The Institution shall only use the
Funds during the Period of Funding.
5. ACCOUNTABILITY OF INSTITUTION FOR
FUNDS
5.1 The Institution shall ensure
that proper accounting controls are exercised over the Fellowship, including
the Funds and the Co-funding (if any).
5.2 Where the Institution has not
legally committed or expended the full amount of the Funds during the
Period of Funding, the Institution shall, within six (6) months after
the end of the Period of Funding, pay to ARC any amount not so committed
or expended, unless the Institution prior to the end of the Period of
Funding advises ARC of the reasons for the non-expenditure, and requests
and obtains ARC’s written approval for the unexpended part of the
Funds to be carried forward and for the Period of Funding to be varied.
6. REPORTING
Financial Reports- Annual
6.1 The Institution shall, by 31
March of each year, or upon written notice given by ARC or otherwise
as specified in Item H, provide ARC with a written Annual Financial
Report on the Fellowship, relating to the previous calendar year. The
report shall, at least, include:
(a)a financial statement in a
form to be stipulated by ARC, specifying the total Funds received and
expended by the institution;
(b)certification by the Chief
Financial Officer or their delegate that the Funds were expended in
accordance with the Deed; and
(c)the amount of Co-funding received
by the Institution where Co-funding is specified as part of the Approved
Budget.
6.2 The Institution shall, by 31
March of each year or upon written notice given by ARC or otherwise
as specified in Item H, provide ARC with an independent annual audit
report for the Institution.
Financial Acquittal - End of Period
of Funding
6.3 The Institution shall, within
six (6) months after the Period of Funding or at other times, as reasonably
requested by ARC, provide a final Financial Acquittal
that complies with Australian Accounting Standards, in a form to be
stipulated by ARC. The acquittal must include:
(a) a statement of income and
expenditure for the Funds received and expended by the Institution for
the entire period of Funding (or a time specified by ARC);
(b) the total interest attributable
to the Funds under this Deed; and
(c) the amount of Co-funding
received by the Institution where Co-funding is specified as part of
the Approved Budget.
6.4 The Financial Acquittal provided
by the Institution under subclause 6.3 shall be certified by the Chief
Financial Officer as notified to ARC.
Progress Reports - Annual
6.5 The Institution shall, by 31
March of each year, or upon written notice given by ARC otherwise as
specified in Item H, provide ARC with a written report, in the form
required by ARC, on the progress of the performance of the Fellowship
relating to the period 1 January to 31 December of the preceding year.
Final Report
– End of Period of Funding
6.6 The Institution shall, within
twelve (12) months after the Period of Funding or termination of this
Deed, whichever is the earlier, provide ARC with a final report, in
the form required by ARC, in respect of the Fellowship.
7. EVALUATION OF THE FELLOWSHIP
7.1 The Institution shall provide
to ARC such information relating to the Fellowship as ARC may reasonably
request for the purpose of auditing and evaluating the Fellowship.
7.2 The Institution shall:
(a) upon fourteen (14) days’ written
notice given by ARC; and
(b) at times agreed to by the
parties during the performance of, or up to five (5) years after the
completion of the Fellowship; make itself available for visits by officers
of ARC (or any other person nominated by ARC) for the purpose of auditing
and evaluating the Project.
8. INSPECTION OF DOCUMENTS
8.1 The Institution shall, if requested
in writing by ARC, make available for inspection and audit (and copying
if required) by officers of, or by other persons authorised by ARC,
all books, accounts, receipts, printed or electronic material and other
documents relating to the expenditure by the Institution of the whole
or any part of the Funds, up to five (5) years after the completion
of the Fellowship.
9. FELLOWSHIP MATERIAL AND INTELLECTUAL
PROPERTY
9.1 Ownership of the Fellowship Material
and Intellectual Property rights in the Fellowship Material will vest
in the Institution, unless specified to the contrary in Item A.
9.2 The Institution acknowledges
that NHMRC has issued Interim Guidelines for the management of Intellectual
Property. The Institution agrees to comply with the principles outlined
in the Interim Guidelines, as amended from time to time by NHMRC.
9.3Institutions must have in place
policies and relevant procedures relating to Intellectual Property management
which:
(a) ensure that staff are aware
of their obligations and responsibilities to protect and manage Intellectual
Property;
(b) determine the ownership and
associated rights or assignment of Intellectual Property (including,
without limitation, any Intellectual Property rights in relation to
transgenic animals created as a result of the research performed under
the Fellowship) and require personnel performing work under the Fellowship
to acknowledge any relevant Intellectual Property ownership and rights;
and
(c) comply with the guidelines
referred to in clause 9.2.
9.4 The parties agree that ARC has
the right to use or publish any report provided by the Institution under
this Deed, in whole or in part, as ARC at its absolute discretion determines.
10. EQUIPMENT AND ANIMALS
10.1 Ownership of items of equipment
and animals purchased with the Funds, shall vest and remain vested in
the Institution, except:
(a) where and to the extent that
Item I specifically states that ownership vests in ARC;
(b)where and to the extent that
ARC transfers the benefit of the Funds to a New Institution in accordance
with clause 11; or
(c) where the Deed is terminated
by ARC pursuant to clause 15.
10.2 Where ownership of equipment
purchased by or in the possession of the Institution is vested in ARC,
the Institution shall, during the Period of Funding, retain possession
of the equipment, maintain it in good condition and return it at the
completion of the Fellowship in the same condition in which it was received,
fair wear and tear excepted.
10.3If the Fellow moves to a New
Institution before completion of research under the Fellowship, then:
(a) upon the making of a Transfer
Application to ARC by the Fellow; and
(b)where ARC approves the Transfer
Application in accordance with clause 11, the Institution shall bring
into existence, sign, execute or otherwise deal with any document which
may be necessary or desirable to transfer ownership of the equipment
and animals purchased with the Funds relevant to the Fellowship or part
of the Fellowship to the New Institution.
10.4 Where this Deed or the Fellowship
under this Deed is terminated by ARC pursuant to clause 15, ARC may
give such directions as ARC at its absolute discretion thinks fit concerning
the transfer of ownership of the equipment and animals purchased with
the Funds, and the Institution shall bring into existence, sign, execute
or otherwise deal with any document which may be necessary or desirable
to transfer ownership in accordance with ARC’s directions.
10.5An item of equipment or animals
purchased with the Funds shall be used for the purposes of the Fellowship
and to that end, the Institution shall ensure such use is subject to
the control and supervision of the Fellow.
10.6 Any purchase by the Institution
of clinical electro-medical equipment must only be of a type acceptable
to the relevant State or Territory biomedical engineering authority
or health authority, and any modification to such equipment must meet
the requirements of those authorities relating to equipment to be installed
in hospitals.
10.8 The Institution must list all
items of equipment with a value of $10,000 or more in an assets register,
which must be available for inspection by ARC upon reasonable notice.
10.9 The assets register must record
the date of purchase, purchase price, description
(including any identifying marks
and numbers) and location of the items of equipment. The assets register
must also record, where applicable, the details of the disposal of any
items of equipment, including the sale price and to whom sold.
10.10 The Institution must ensure
that equipment purchased with the Funds is made available to personnel
in respect of whom funding under a ARC Fellowship (including under this
Deed) is provided by ARC.
11. MOBILITY
11.1 The Parties acknowledge that
a Fellow may, at any time, make a Transfer Application to their Institution,
so as to enable the Fellow to continue the conduct of the Fellowship
or part of the Fellowship at a New Institution.
11.2 The Institution will notify
ARC of the receipt of any Transfer Application. The Institution may
make submissions to ARC in relation to such Transfer Application.
11.3 ARC may, at its absolute discretion,
approve the Transfer Application and may impose such conditions on that
approval as ARC thinks fit.
11.4 Notwithstanding any other provision
of this Deed, if ARC approves a Transfer Application, ARC may cease
or reduce the Funds to the Institution by such amount as ARC, at its
absolute discretion, thinks appropriate. ARC shall not be liable to
pay any costs or compensation to the Institution resulting from any
action by ARC under this clause.
11.5 The Institution agrees to do
all necessary things and sign all necessary documents to facilitate
the making of a Transfer Application and to give effect to an approval
by ARC of the Transfer Application.
11.6In relation to a Fellowship which
is the subject of a Transfer Application, the Institution agrees to
do all things reasonably required by ARC to facilitate the smooth and
orderly transfer of the management and operation of the Fellowship to
any other entity as directed by ARC within the timeframe reasonably
specified by ARC, including the transfer of any unexpended Funds remaining
for the Fellowship to the new Institution.
12. ACKNOWLEDGEMENT AND PROMOTION
12.1 The Institution shall properly
acknowledge the contribution of ARC to the Fellowship in any relevant
correspondence, public announcement, advertising material, research
reports or other material produced by, on behalf of or through the Institution
in any manner relating to the Fellowship.
12.2The Institution shall actively
promote the research undertaken under this Fellowship in both medical
and non-medical circles, and shall assist the Fellow in his or her promotion
of the research.
13. FELLOWSHIP RECIPIENT
13.1 The Institution shall ensure
that the Fellowship Recipient listed at Item B perform the activities
specified in the relevant Application in relation to the Fellowship
and in accordance with this Deed.
13.2 Where a Fellowship Recipient
is unable to perform, or to continue to perform, the activities in relation
to a Fellowship, the Institution shall notify ARC immediately.
13.3 ARC may request the Institution
to make available to ARC the services of Fellowship Recipients for the
purposes of reviewing or assessing applications made under ARC Funding
Schemes during the Period of Funding, and the Institution will use its
best endeavours to facilitate compliance by the Fellowship Recipient.
13.4If:
a Fellowship Recipient is
unable to perform the activities in relation to a Fellowship; or
the Institution otherwise
does not comply with this clause,
ARC may terminate a Fellowship or
this Deed, whereupon the provisions of clause 15 shall apply.
14. TERMINATION FOR CONVENIENCE
14.1 ARC may, at any time by written
notice, suspend or defer any payment of the Funds or terminate this
Deed or reduce the scope of a Fellowship. If this Deed is terminated
or reduced in scope, ARC shall, subject to subclause 14.3 and subclause
14.4, be liable only for:
(a) Funds payable under this
Deed up to the effective date of termination or reduction; and
(b) any reasonable costs incurred
by the Institution and directly attributable to the termination or reduction
(excluding costs arising pursuant to the termination of an employment
contract which exceed the equivalent of four (4) weeks’ salary).
14.2 Upon receipt of a notice of termination
or reduction, the Institution must:
(a) stop work as specified in the
notice;
(b) take all available steps
to minimise loss resulting from that termination or reduction;
(c) in the case of reduction
in the scope of the Fellowship, continue work on any part of the Fellowship
not affected by the notice; and
(d)immediately repay to ARC so
much of the Funds not spent or acquitted to the satisfaction of ARC
as relate to any part of the Fellowship affected by the notice as at
the date of the notice.
14.3In the event of reduction in
the scope of the Fellowship, ARC’s obligation to pay Funds shall abate
proportionately to the reduction in the Fellowship.
14.4 ARC is not liable to pay any
other amount in respect of a termination or reduction under this clause.
15. TERMINATION AND SUSPENSION
15.1 Where:
(a) ARC is reasonably satisfied
that any of the terms and conditions of this Deed have not been complied
with by the Institution;
(b) ARC is reasonably satisfied
that the terms of clause 2.2(a) or clause 2.2 (e) have not been complied
with by the Institution;
(c) ARC, by notice in writing,
requests the Institution to take action to implement a Project Outcome
specified in Item D and, after one month from the date of the notice,
the Institution has failed to take that action;
(d) ARC is reasonably satisfied
that any statement made in the Application is incorrect or incomplete
in a way which would have affected the original decision to approve
the Funds;
(e) ARC is not reasonably satisfied
that the purposes and activities of the Institution or the Fellowship
Recipient remain compatible with the objectives of the Fellowship;
(f) the Institution, in the reasonable
opinion of ARC, fails to adequately comply with its reporting obligations
under clause 6;
(g) as a result of any change
in ARC policy or lack of funds, Funds for the Fellowship are to cease
or be reduced;
(h) ARC approves a Transfer Application;
the Institution is using the
Funds for purposes other than the Fellowship;
ARC may, at its absolute discretion,
by notice in writing given to the Institution:
(j)terminate either the Fellowship
or this Deed; or
(k) suspend or reduce payment
of the Funds, pending a review by ARC of the future performance of the
Fellowship.
15.2 Where ARC terminates a Fellowship
or this Deed under clause 15.1, ARC shall not be obliged to pay to the
Institution any outstanding amount of the Funds.
16. RECOVERY OF FUNDS
16.1 If at any time ARC is reasonably
satisfied that any part of the Funds has been expended or committed
by the Institution other than in accordance with this Deed, ARC may
recover that amount as a debt due to ARC.
16.2If the Institution, in the reasonable
opinion of ARC, fails to adequately comply with its reporting obligations
under clause 6, ARC may recover, as a debt due to ARC, so much of the
Funds as ARC considers reasonable, having regard to the decreased usefulness
of the Fellowship to ARC for:
(a) analysis of the conduct and
outcomes of the Fellowship; and
further policy initiatives,
and in this regard, the Institution
acknowledges that the reports to be provided pursuant to this Deed provide
substantial value to ARC as a source of information for these purposes.
16.3 ARC may, following the submission
of any report, or following the time that the Financial Acquittal was
due to be submitted under subclause 6.3, whichever is the earlier, recover
from the Institution as a debt due to ARC any part of the Funds which:
(a) ARC is not reasonably satisfied
has been expended in accordance with this Deed; or
(b) remains unexpended.
17. INDEMNITY
17.1 The Institution shall indemnify,
at all times, ARC, its officers, employees and agents from and against
all action, claims, demands, costs and expenses (including the cost
of defending or settling any action, claim or demand) made, sustained,
brought or prosecuted in any manner based upon, occasioned by, or attributable
to any loss or damage to any person, or loss or damage to property which
may arise from or be a consequence of the performance of the Fellowship.
17.2 The Institution's liability
to indemnify ARC under clause 17.1 will reduce proportionately to the
extent that any negligent or other tortious act or omission of ARC contributed
to the relevant liability, loss or damage, or loss or expense.
18. INSURANCE
18.1 Unless ARC otherwise agrees,
the Institution must, for so long as any obligations remain in connection
with this Deed:
(a) effect and maintain workers’
compensation insurance as required by law, and public risk insurance
policies for appropriate amounts to cover all the obligations of the
Institution under this Deed, including those which survive the expiration
or termination of this Deed; and
(b) upon request, provide proof
of insurance acceptable to ARC.
19. USE OF INFORMATION
19.1 The Institution acknowledges
that ARC may be required to provide information in relation to this
Funding or this Deed, as required by the operation of any law, judicial
or parliamentary body or government agency.
19.2 ARC reserves the right to publicise
and report on the awarding of funding to the Institution. ARC may do
this by including general information about the Institution, the Funds,
title and a brief description of the Fellowship in media releases, general
announcements about the Funding and in annual reports.
19.3 The Institution acknowledges
that its performance of research under the Fellowship and any failure
to comply with this Deed, including, without limitation:
(a) any failure to provide full
and thorough reports pursuant to clause 6; or
any careless use or misuse
of the Funds,
may be taken into consideration by
ARC in any future application by the Institution for funding under any
scheme.
20.
NEGATION OF EMPLOYMENT, PARTNERSHIP AND AGENCY
20.1 The Institution agrees not to
represent itself, and to use its best endeavours to ensure that its
officers, employees, agents and subcontractors do not represent themselves,
as being an officer, employee, partner or agent of ARC, or as otherwise
able to bind or represent ARC.
20.2 The Institution, its officers,
employees, agents and subcontractors do not by virtue of this Deed become
an officer, employee, partner or agent of ARC, nor does the Institution
have any power or authority to bind or represent ARC.
21. COMPLIANCE WITH LAW
21.1 The Institution shall ensure
that in carrying out its functions and expending the Funds, it complies
with all relevant Commonwealth, State and local government laws, regulations
and by-laws and including, without limiting the generality of the foregoing,
all those relating to employment terms and conditions.
22. CONFLICT OF INTEREST
22.1 The Institution warrants that,
at the date of signing this Deed no conflict of interest exists or is
likely to arise in the performance of its obligations under this Deed.
22.2 If during the term of this Deed,
a conflict of interest, or risk of a conflict of interest, or an apparent
conflict of interest (‘conflict, risk or apparent conflict’) arises
in respect of the Institution, or an employee or agent of the Institution,
the Institution must immediately notify ARC in writing of that conflict,
risk or apparent conflict.
22.3 If a conflict, risk or apparent
conflict is experienced by the Institution, or an employee or agent
of the Institution, the Institution must take such steps as ARC may
reasonably require to resolve or otherwise deal with that conflict,
risk or apparent conflict.
22.4 If the Institution fails to
notify ARC under this clause 22, or is unable or unwilling to resolve
or deal with the conflict, risk or apparent conflict as required, ARC
may terminate this Deed in accordance with clause 15 (Termination and
Suspension).
23. PROTECTION OF PERSONAL INFORMATION
23.1 The Institution agrees to:
(a) use Personal Information
held in connection with the performance of the Fellowship under this
Deed only for the purposes of fulfilling its obligations under this
Deed;
(b) take all reasonable measures
to ensure that Personal Information in its possession or control in
connection with this Deed is protected against loss and unauthorised
access, use, modification or disclosure;
(c) comply with the Privacy
Act 1988 (to the extent that Act applies to the Institution);
(d) comply with any relevant
privacy law of State or Territory (to the extent that such law applies
to the Institution);
(e) regardless of whether (c)
or (d) apply, comply with those Information Privacy Principles which
affect the security, use and disclosure of Personal Information to the
extent that the content of those Principles applies to the types of
activities the Institution is undertaking under the Deed, as if the
Institution were an agency as defined in the Privacy Act 1988;
(f) cooperate with any reasonable
demands or inquiries made by either ARC or the Privacy Commissioner
on the basis of the exercise of the functions of the Privacy Commissioner
under the Privacy Act 1988 including, but not limited to, a request
from ARC to comply with a guideline concerning the handling of Personal
Information;
(g) ensure that any person who
has access to any Personal Information is made aware of, and undertakes
in writing, to observe the Information Privacy Principles and other
obligations referred to in this clause 23;
(h) comply, as far as practicable,
with any policy guidelines laid down by ARC or issued by the Privacy
Commissioner from time to time, relating to the handling of Personal
Information;
(i) comply, as far as practicable,
with any direction of ARC to observe any recommendation of the Privacy
Commissioner relating to any acts or practices of the Institution that
the Privacy Commissioner considers breach the Institution’s obligations
set out in this clause 23; and
(j) indemnify ARC as the circumstances
require, in respect of any loss, liability or expense suffered or incurred
by ARC, arising out of or in connection with a breach of the obligations
of the Institution under this clause 23 or any misuse of Personal Information
by the Institution or any disclosure by the Institution in breach of
an obligation or confidence, whether arising under the Privacy Act
1988 or otherwise.
24. DISPUTE RESOLUTION
24.1Before resorting to external
dispute resolution mechanisms (except for urgent interlocutory relief)
the Parties must attempt to settle by negotiation any dispute in relation
to this Deed, including by referring the matter to persons who may have
authority to intervene and direct some form of resolution.
24.2If a dispute is not settled by
the Parties within twenty (20) Working Days of one Party first sending
to the other Party written notice of the dispute, the dispute may be
the subject of court proceedings or may be submitted to some alternative
dispute resolution mechanism as may be agreed in writing between the
Parties.
24.3 Notwithstanding the existence
of a dispute, the Institution must continue to perform its obligations
under this Deed.
25. NOTICES
25.1Any notice, request or other
communication to be given or served pursuant to this Deed shall be in
writing and addressed to the other party at the address as set out in
the schedule under Item J [NOTICES] or such other address as a Party
may notify the other party from time to time.
25.2 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 two (2) business days
after the date on which it was sent;
(c)if sent by facsimile, on the
business day following the day of dispatch provided that the sender
receives an “OK” code in respect of the transmission and is not
notified by the Institution by close of business of the next business
day following the day of dispatch that the transmission was illegible;
or
(d)if transmitted electronically,
upon receipt by the sender of an acknowledgment that the communication
has been properly transmitted to the recipient.
26. RESPONSIBLE OFFICER
26.1 The Institution shall notify
ARC in writing of the name and title of the Responsible Officer. All
correspondence and reports relating to the Funds shall be made by or
through the Responsible Officer and all documents signed by the Responsible
Officer shall be binding on the Institution.
26.2 The Responsible Officer shall
supply all necessary information reasonably requested by ARC in relation
to the purposes for which the Funds are used.
27. ASSIGNMENT AND OTHER ENCUMBRANCES
27.1 The Institution shall not without
the written consent of ARC assign, mortgage, charge or encumber this
Deed or any benefit, moneys or rights obtained or to be obtained or
obligation under this Deed.
28. EXECUTIVE OFFICER MAY ACT
28.1 The Executive Officer may exercise,
on behalf of ARC, any of the powers conferred upon ARC by this Deed.
29. SURVIVAL OF PROVISIONS
29.1 The provisions of clauses 2.2(f),
5, 6, 7.1, 9, 10.4, 11.5, 11.6, 12, 14, 15.2, 16, 17, 18, 19, 20, 21,
23, 24, 25, 26, 27, 28, 29 and 30 will survive the expiration or earlier
termination of this Deed.
30. TAXES, DUTIES AND CHARGES
30.1 Except as provided by this clause,
all taxes, duties and government charges imposed or levied in Australia
or overseas in connection with the performance of this Deed shall be
borne by the Institution.
30.2 The Funds payable (“Original
Funds Payable”) to the Institution by ARC do not include an amount
to cover any liability of the Institution for Goods and Services Tax
(“GST”) on any supplies made under this Deed which are taxable supplies
within the meaning of A New Tax System (Goods and Services Tax) Act
1999 (the “GST Act”).
30.3 If a supply made by the Institution
under this Deed is a taxable supply under the GST Act, the Institution
may, by notice in writing to ARC, increase the Original Funds Payable
by ARC by the amount of GST that is payable by the Institution on that
part of the Original Funds Payable which relates to the taxable supply
as if that part of the Original Funds Payable is the value of the supply
for the purposes of the GST Act.
30.4If required by ARC, the Institution
shall substantiate to ARC’s reasonable satisfaction how any change
in the amounts payable by ARC determined under this clause have been
calculated, before such changes will take effect.
30.5In relation to any taxable supplies
made under this Deed, the Institution agrees to issue ARC with a tax
invoice in accordance with the GST Act.
IN WITNESS WHEREOF the Parties have executed
this DEED as at the day and year written above.
SIGNED, SEALED AND DELIVERED on behalf
of ARC by:
…………………………………………
………………………………………
(print name) (Signature)
…………………………………………
(position)
in the presence of:
…………………………………………
…………………………..…………..
(print name) (Signature)
…………………………………………
(position)
SIGNED, SEALED AND DELIVERED on behalf
of the
…………………………………………
(Institution name)
by ………………………………………
……………………………………….
(print name) (Signature)
who warrants they have the authority to bind the Institution
…………………………………………
(position)
in the presence of:
…………………………………………
………………………………………..
(print name) (Signature)
…………………………………………
(position)
ANNEXURE A
– INSTITUTIONAL APPROVALS AND COMPLIANCES
1.Documented Clearance Requirements
The Institution must meet the following
clearance requirements and obtain and maintain as required, the necessary
approvals for the duration of the Fellowship:
(a) Research
involving humans
All research involving humans shall be
conducted in accordance with the requirements of the ‘National
Statement on Ethical Conduct in Research Involving Humans’
(1999) and associated guidelines, as amended from time to time.
Approval shall be obtained from the relevant
Human Research Ethics Committee (HREC) before commencement of the research
conducted under the Fellowship, and shall be maintained for the duration
of the Fellowship and re-obtained if required for the duration of the
Fellowship. Institutions and HRECs shall be responsible for monitoring
the conduct of the research conducted under the Fellowship and ensuring
that ethical approval is obtained for amendments to any research ocnducted
under the Fellowship.
(b) Animal experimentation
Experiments involving the use of animals
shall be conducted, and experimental animals shall be housed, maintained
and controlled, in accordance with the current 'Australian Code of
Practice for the Care and Use of Animals for Scientific Purposes'
and any additional policy statements adopted by ARC. The Institution
shall ensure that any research conducted under the Fellowship shall
be demonstrated to be acceptable to the appropriate Animal Ethics Committee
of the particular institution, as shall intended variations, with ethical
implications, to any already approved research protocol.
Where research conducted under the Fellowship
involves the use of inbred strains of animals, the institution must
confirm that the genetic authenticity of such animal colonies has been
checked at appropriate intervals.
(c) Use of radioactive substances,
ionising radiation, recombinant DNA,
biohazardous material, potent teratogens
or carcinogens
Clearance for Fellowships which involve
any of the above must be obtained from the
appropriate Institutional Bio-safety
Committee and/or, where relevant, the appropriate Ethics Committee.
If a Fellowship involves the use of ionising radiation, the Institution
shall ensure that any personnel performing procedures involving ionising
radiation are appropriately trained and hold a relevant current licence
from the appropriate State authority, and that all relevant State or
Territory legislation is complied with. The Institution shall retain
all such licences and shall provide them to ARC if required to do so.
(d) Administration to humans of drugs,
chemical agents or vaccines
Any research conducted under a Fellowship
involving the above will be subject to prior clearance by the relevant
human research ethics committee.
(e) Import of
experimental organisms
The Institution must ensure that, before
experimental organisms are imported into
Australia for the purposes of research
conducted under a Fellowship, the Institution or the Recipient of the
Fellowship must obtain authorisation for the importation from the appropriate
Commonwealth and State authorities.
(f) Storage of biological materials
Any biological material accumulated during
the course of a Fellowship shall be transferred to an Australian body
with statutory responsibility for control of such material. If no such
body is available to take control of the biological material then the
Institution shall dispose of the material in accordance with the Institution’s
established safeguards.
(g) Genetic manipulation
All work involving recombinant nucleic
acids must conform to the requirements set out in the Gene Technology
Act 2000 (Cth) as amended from time to time. If a Fellowship involves
the preparation and/or use of recombinant nucleic acids constructed
in vitro from sources that do not ordinarily recombine genetic information,
approval in writing by the Institution’s Biosafety Committee must
be obtained. If a Fellowship involves or concerns the use of recombinant
DNA techniques on animals or humans then, before the proposed research
commences, the Institution shall ensure that the research has been approved
by the relevant Ethics or Biosafety Committee of the Institution. The
Institution shall retain all Certificates relating to the above and
will provide such evidence to ARC if required to do so.
2.Compliance with NHMRC Guidelines
The Institution must ensure that research
under the Fellowship is conducted in accordance with the principles
outlined in the following NHMRC guidelines:
National Statement on Ethical
Conduct in Research Involving Humans
Joint AVCC/NHMRC Statement
and Guidelines on Research Practice
Australian code of practice
for the care and use of animals for scientific purposes
Guidelines on Ethical matters
in Aboriginal and Torres Strait Islander Health Research
Ethical Guidelines on Assisted
Reproductive Technology (1996) [under review]
Guidelines for Genetic Registers
and Associated Genetic Material 1999
Guidelines for Ethical Review
of Research Proposals for Human Somatic Cell Gene Therapy and Related
Therapies
Guidelines under Sections
95 and 95A of the Privacy Act 1988
(Cth)
Guidelines under Sections
95 and 95A of the Privacy Act 2000
(Cth)
Supplementary Note 7 – Somatic
Cell Gene Therapy and Other Forms of Experimental
Introduction of DNA and RNA
into Human Subjects 1992
SCHEDULE TO THIS DEED OF AGREEMENT
(Note references in the Schedule are
to clauses in the Deed of Agreement)
SIGNATURE BLOCK FOR SCHEDULE
This Schedule is made on the ………
day of ………………………… 200….
The parties agree to be bound by the
terms and conditions set out in the Deed
dated ………………. {insert
date Deed was signed}
IN WITNESS WHEREOF the Parties have executed
this Schedule as a DEED as at the day and year written above.
SIGNED, SEALED AND DELIVERED on behalf
of ARC by:
…………………………………………
………………………………………..
(print name) ) (Signature)
………………………………………….
(position) in the presence of:
………………………………………….
………………………………………..
(print name) (Signature)
………………………………………….
(position)
SIGNED, SEALED AND DELIVERED on behalf
of the
…………………………………………
(Institution Name)
by ………………………………………
………………………………………..
(print name) (Signature)
who warrants they have the authority
to bind the Institution
………………………………………….
(position)in the presence of:
………………………………………….
………………………………………..
(print name) (Signature)
………………………………………….
(position)