Guidance Note for clause 4. 2: For the Variation Agreement to form a contract that binds the parties, consideration must transfer from one party to another. Consideration is the price (usually money) paid by one party for the other party's promise (for example, the promise to undertake the project). Whilst some variations to the Agreement will result in additional Fees being paid, there may be occasions when a variation will not satisfy the requirement for consideration (for example, the variation is only to project details, such as milestone dates or key personnel). To ensure that this Variation Agreement is legally binding and satisfies the consideration requirement, this clause requires each party to pay $1 in consideration to the other party. Note that this payment is for administrative purposes and only payable on demand. The parties are not required to demand or exchange $1 in order for the Variation Agreement to be binding.
Guidance Note for clause 4. 6: This clause provides that if GST is payable by the Licensor, then the Licensee will pay the Licensor the Fee plus any GST payable on that supply.
Guidance Note for clause 4. 1: Each party is required to cover its costs in connection with the Variation Agreement (unless otherwise stated in this Variation Agreement).
Guidance Note for clause 4. This clause applies if Milestones are set out in the Project Plan. Milestones may not be suitable for all Projects. The parties can specify that the University is required to provide certain deliverables or undertake certain tasks by a particular date. This can also include setting out criteria for the University to achieve in meeting a Milestone. These details should be specified in section 3 of Schedule 2. Specifying Milestones and Milestone Dates can assist in clearly describing the deliverables, tasks and activities for a Project. It can also assist to keep the University accountable for the delivery of elements of the Project in a timely manner. This clause also sets out a process to assess the achievement of Milestone and how the parties are to manage the Agreement if the Milestone is not achieved.
Guidance Note for clause 4. 4: The purpose of this clause is to make clear that this Variation Agreement is the entire agreement between the parties in relation to the amendments set out in item 6. This clause does not prevent additional Variation Agreements being entered into by the parties in the future, in order to give effect to additional amendments. The laws that govern the Agreement, and any process for management of disputes under the Agreement, apply to this Variation Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation.
Guidance Note for clause 4. This clause sets out the Licensee's obligation to pay the Fees specified in Schedule 3. This clause also sets out the applicable payment terms (including requirements for invoicing and late payments), and the reporting requirements (which may be relevant if for example the Fees are based on sales or revenue). The parties should seek further commercial advice on appropriate fee structures for their transaction. Fees and payment
Guidance Note for clause 4. 3(d): The cash rate for the calculation of the additional charge is published by the Reserve Bank of Australia and can be found on its website: xxxxx://xxx.xxx.xxx.xx/xxxxxxxxxx/xxxx-xxxx/. Late payments will be subject to an additional charge, calculated daily from the due date until the date the outstanding amount is paid at:
Guidance Note for clause 4. 5: This clause is relevant if the Fees are calculated based on amounts or benefits received by the Licensee, or costs incurred by the Licensee. The Licensee is required to report non-commercial arrangements to the Licensor, so that the true value of these can be taken into account when determining the Fees payable. For example, if the Licensee agrees to provide Products to an Affiliate or a sublicensee at a concessional rate - including for some other benefit - this must be reported to the Licensor to ensure the Fee is appropriately calculated. The clause may also allow costs to be discounted, for example if the Licensee was incurring costs for marketing and sales against revenue received by an Affiliate. Care needs to be taken when agreeing the method for calculating the Fees and the parties should seek further commercial advice. Arms' length commercial value If:
Guidance Note for clause 4. 3: The purpose of this clause it to make it clear that the parties can sign separate copies of this Variation Agreement (called 'counterparts') and the Agreement will be binding. The parties should ensure that the counterpart documents are exactly the same.
Guidance Note for clause 4. This clause applies if Personnel of a party attend the other party's premises (for example, the Collaborator's Personnel visits the University to observe an experiment).
