Undertakings and Acknowledgements. 22.1 The Recipient must: (a) (Laws): comply with all applicable Laws; (b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors; (c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud; (d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient; (e) (WHS Law): (i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of WHS Law; (ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident); (iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates on the status of any such actions as reasonably required by ARENA; (iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and (v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and (f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme: (i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and (ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project; (g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) that relates to the performance of this Agreement; (h) (subcontractors and Project Participants) in connection with the Project: (i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth); (ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices; (iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 of the Project Details or otherwise approved by ARENA in writing; and (iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement; (i) (insurance): in connection with the Project: (i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 of the Project Details; (ii) with respect to such insurances: (A) where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven years after the Term; and (B) where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and (iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained; (j) (books and records): at its own cost, during the Term of this Agreement and for a period of seven years after the Term, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable: (i) all receipts and payments related to the Project to be identified and reported to ARENA; and (ii) the amounts payable by ARENA under this Agreement to be determined or verified; (k) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict; (l) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into: (i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted; (ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted; (iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and (iv) allow ARENA representatives to be present at visits; (m) (bank account): comply with the bank account requirements specified in clause 17 (Bank account); (n) (Personnel): (i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing; (ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project; (iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project: (A) notify ARENA as soon as practicable; (B) if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and (C) obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and (iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements); (o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties; (p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement; (q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines; (r) (notification): notwithstanding any other provision of this Agreement, notify ARENA: (i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing: (A) the reason for the delay; (B) the anticipated impact on the Project; and (C) the steps the Recipient is taking or will take to overcome the delay, (ii) keep ARENA updated as to the status of any such notified delay; and (iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware; (iv) immediately, if it becomes aware: (A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes; (B) it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement; (C) it has, or may have, committed a Material Breach; or (D) an Insolvency Event has occurred or is likely to occur with respect to the Recipient; (s) (Modern Slavery Act): (i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth); (ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project; (iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and (iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and (t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects).
Appears in 2 contracts
Samples: Funding Agreement, Funding Agreement
Undertakings and Acknowledgements. 22.1 16.1 The Recipient must:
(a) (Laws): comply with all applicable Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;
(e) (WHS Law):
(i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates on the status of any such actions as reasonably required by ARENA;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and
(v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d) (Undertakings and Acknowledgementsclause16.1(b); and
(fc) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project;
(gd) (privacy):
(i) comply with applicable privacy laws, including the Privacy Act 1988 (Cth) (the Privacy Act);
(ii) promptly notify ARENA in writing if it (or its subcontractors) commits a notifiable data breach within the meaning of the Privacy Act relating to any data or personal information held in connection with the Project; and
(iii) ensure that Personal Information collected or received in connection with the Project is used solely for the purposes of performing its obligations under this Agreement and otherwise in accordance with the requirements of the Privacy Act;
(e) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) for access to a document created by, or in the possession of, the Recipient or any subcontractor, that relates to the performance of this Agreement;
(hf) (subcontractors and Project Participants) in connection with the Project:
(i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 of the Project Details or otherwise approved by ARENA in writing; and
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(ig) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 of the Project Details;
(ii) with respect to such insurances:
(A) A. where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven 7 years after the Term; and
(B) B. where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(jh) (books and records): at its own cost, during the Term of this Agreement and for a period of seven 7 years after the Term, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(ki) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(lj) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(mk) (bank account): comply with the bank account requirements specified in clause 17 (Bank account)8;
(nl) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) A. notify ARENA as soon as practicable;
(B) B. if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) C. obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements16.1(l)(iii);
(om) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(pn) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreementrequest;
(qo) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(p) (monitoring): meet with ARENA at the times and in the manner reasonably required by ARENA to discuss any issues in relation to this Agreement or the Project;
(q) (reporting):
(i) comply with the reporting requirements set out in item 3 of Schedule 1 (The Project) and keep ARENA regularly and fully informed regarding the progress of the Project;
(ii) during the Term of this Agreement, and for a period of 5 years following the Final Milestone Date, where requested by ARENA, provide:
a. data with respect to carbon abatement resulting from the Project; and
b. provide a report on the number of direct jobs (including any permanent roles, contractors, subcontractors and consultants) created during any construction and operation phases of the Project; and
(iii) provide such further information as reasonably requested by ARENA with respect to the Low Emissions Technology Statement;
(r) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) A. the reason for the delay;
(B) B. the anticipated impact on the Project; and
(C) C. the steps the Recipient is taking or will take to overcome the delay,
(ii) , and keep ARENA updated as to the status of any such notified delay; and.
(iiiii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iii) as soon as practicable, if it has received, or requested to receive, other funds from the Commonwealth or State or Territory or local government for the Project; and
(iv) immediately, if it becomes aware:
(A) A. of any significant matter that may impact on the delivery of the project, including its Outputs or OutcomesCrisis (and in accordance with any protocol reasonably required by ARENA);
(B) B. it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) C. it has, or may have, committed a Material Breach; or
(D) D. an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Intellectual Property):
(i) grant to, or obtain for, ARENA a perpetual, irrevocable, world-wide, royalty-free, fee-free, non-exclusive licence to use, reproduce, adapt, modify, communicate, broadcast, distribute, publish, disseminate and sublicense the Licensed Materials solely for the purpose of giving effect to the Knowledge Sharing Plan or to carry out its objectives under the ARENA Act, but not including the right to exploit the Licensed Materials for commercial purposes;
(ii) if someone claims, or ARENA reasonably believes that someone is likely to claim, that all or part of the Licensed Materials or their use in accordance with this Agreement infringe their Intellectual Property Rights or Moral Rights, in addition to the indemnity under clause 32 and to any other rights that ARENA may have, promptly, at the Recipient's expense:
A. use its best efforts to secure the rights for ARENA to continue to use the affected Licensed Materials free of any claim or liability for infringement; or
B. replace or modify the affected Licensed Materials so that the Licensed Materials or the use of them does not infringe the Intellectual Property Rights or Moral Rights of any other person without any degradation of the performance or quality of the affected Licensed Materials; and
(iii) where required for the Project, and as agreed between the parties, comply with an Intellectual Property Management Plan as set out in item 3.2 of Schedule 1 (The Project) when undertaking the Project;
(t) (Moral Rights): obtain all consents (including any Moral Rights consents or waivers) necessary to perform its obligations under this Agreement; and
(u) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achievedchains; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(tv) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENAif applicable, comply with the requirements set out in Schedule 3 (Major Projects).
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 20.1 The Recipient must:must:
(a) (Laws): comply with all applicable Laws;Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;Recipient;
(e) (Assets):
(i) hold all Assets securely and safeguard them against theft, loss, damage or unauthorised use, ensuring that appropriate insurances, licences and registration are procured and maintained and that Assets are in good working order throughout the Term of this Agreement;
(ii) be fully responsible for, and bear all risks relating to, the use and disposal of the Assets, including reinstating lost or damaged Assets without using any ARENA Funding; and
(iii) notify ARENA in writing before disposing of an Asset and not dispose of an Asset where doing so would affect the Recipient’s ability to achieve the Project outcomes in clause 2 (Recipient to undertake the Project);
(f) (WHS Law):Law):
(i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates on the status of any such actions as reasonably required by ARENA;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and
(v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) that relates to the performance of this Agreement;
(h) (subcontractors and Project Participants) in connection with the Project:
(i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 of the Project Details or otherwise approved by ARENA in writing; and
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(i) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 of the Project Details;
(ii) with respect to such insurances:
(A) where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven years after the Term; and
(B) where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(j) (books and records): at its own cost, during the Term of this Agreement and for a period of seven years after the Term, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(k) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(l) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(m) (bank account): comply with the bank account requirements specified in clause 17 (Bank account);
(n) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) notify ARENA as soon as practicable;
(B) if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements);
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(r) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) the reason for the delay;
(B) the anticipated impact on the Project; and
(C) the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) it has, or may have, committed a Material Breach; or
(D) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects).
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 20.1 The Recipient must:
(a) (Laws): comply with all applicable Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;
(e) (Assets):
(i) hold all Assets securely and safeguard them against theft, loss, damage or unauthorised use, ensuring that appropriate insurances, licences and registration are procured and maintained and that Assets are in good working order throughout the Term of this Agreement;
(ii) be fully responsible for, and bear all risks relating to, the use and disposal of the Assets, including reinstating lost or damaged Assets without using any ARENA Funding; and
(iii) notify ARENA in writing before disposing of an Asset and not dispose of an Asset where doing so would affect the Recipient’s ability to achieve the Project outcomes in clause 2;
(f) (WHS Law):
(i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates on the status of any such actions as reasonably required by ARENA;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and
(v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) that relates to the performance of this Agreement;
(h) (subcontractors and Project Participants) in connection with the Project:
(i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 of the Project Details or otherwise approved by ARENA in writing; and
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(i) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 of the Project Details;
(ii) with respect to such insurances:
(A) where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven years after the Term; and
(B) where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(j) (books and records): at its own cost, during the Term of this Agreement and for a period of seven years after the Term, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(k) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(l) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(m) (bank account): comply with the bank account requirements specified in clause 17 (Bank account);
(n) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) notify ARENA as soon as practicable;
(B) if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements);
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(r) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) the reason for the delay;
(B) the anticipated impact on the Project; and
(C) the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) it has, or may have, committed a Material Breach; or
(D) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects).
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 21.1 The Recipient must:
(a) (Laws): comply with all applicable Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;
(e) (WHS Law):
(i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may Advancing Renewables Program Funding Agreement | Port Augusta Solar Methanol Project 2022/ARP029 10 result in ARENA being in breach of WHS Law;
(ii) immediately promptly notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates on the status of any such actions as reasonably required by ARENA;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and
(v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d) (Undertakings and Acknowledgements21.1(d); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) that relates to the performance of this Agreement;
(h) (subcontractors and Project Participants) in connection with the Project:
(i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 of the Project Details or otherwise approved by ARENA in writing; and
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(i) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 of the Project Details;
(ii) with respect to such insurances:
(A) A. where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven 7 years after the Term; and
(B) B. where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;; Advancing Renewables Program Funding Agreement | Port Augusta Solar Methanol Project 2022/ARP029 11
(j) (books and records): at its own cost, during the Term of this Agreement and for a period of seven 7 years after the Term, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(k) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(l) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(m) (bank account): comply with the bank account requirements specified in clause 17 (Bank account)16;
(n) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) A. notify ARENA as soon as practicable;
(B) B. if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) C. obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements21.1(n)(iii);
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(r) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:: Advancing Renewables Program Funding Agreement | Port Augusta Solar Methanol Project 2022/ARP029 12
(A) A. the reason for the delay;
(B) B. the anticipated impact on the Project; and
(C) C. the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) A. of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) B. it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) C. it has, or may have, committed a Material Breach; or
(D) D. an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects).
Appears in 1 contract
Undertakings and Acknowledgements. 22.1 10.1 The Recipient must:
(a) (Lawscooperation): comply cooperate with all applicable LawsARENA and other parties, and attend any meetings, as requested by ARENA, acting reasonably;
(b) (sanctionsstandards): undertake the Activity diligently, efficiently, safely and to a high professional standard and in connection accordance with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractorsthis Agreement;
(c) (fraudreporting): immediately notify ARENA in writing of any fraud or suspected fraud in connection comply with the Project reporting requirements set out in item 3 of Schedule 1 and take such action as keep ARENA reasonably requires to manage regularly and fully informed regarding progress of the fraudActivity;
(d) (Change Laws): comply with:
(i) all applicable Laws; and
(ii) all relevant Australian industry standards, best practice and guidelines (including those specified in Control): promptly notify ARENA of any Change in Control or likely Change in Control item 4 of the RecipientActivity Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(e) (WHS Law):
(i) comply with applicable the WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of the WHS Law;
(ii) immediately notify ARENA of any incidents which are notifiable incidents under WHS Law, accidents, injuries, injuries or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident)Activity;
(iii) in relation to any WHS Notifiable Incident, if requestedincident notified, provide to ARENA an investigation report containing findings on the causes and effects of, and corrective and preventative actions arising from, the incident any accident, notifiable incident, injury or damage to property and, provide updates on following the completion of an investigation report, a monthly report identifying the status of any such preventative or corrective actions as reasonably required by ARENA;identified in that investigation report; and
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; andnotifiable incident or accident, injury or damage to property of a serious nature;
(vf) (privacy): use and ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating the use of Personal Information (as defined in the Project contain those provisions necessary to enable Privacy Xxx 0000 (Cth)) provided by ARENA or collected by or for the Recipient to comply in connection with this Agreement only for the purposes of performing its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this ProjectAgreement;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 Xxx 0000 (Cth) for access to a document created by, or in the possession of, the Recipient or any subcontractor that relates to the performance of this Agreement (and not to the entry into this Agreement), including providing assistance to object to a request where an exemption applies to a document;
(h) (subcontractors Intellectual Property):
(i) grant to, or obtain for, ARENA a perpetual, irrevocable, world-wide, royalty-free, fee-free, non-exclusive licence to use, reproduce, adapt, modify, communicate, broadcast, distribute, publish, disseminate and Project Participantssublicense the Licensed Materials solely for the purpose of giving effect to the Knowledge Sharing Plan or to carry out its objectives under the ARENA Act;
(ii) if someone claims, or ARENA reasonably believes that someone is likely to claim, that all or part of the Licensed Materials or their use in connection accordance with this Agreement infringe their Intellectual Property Rights or Moral Rights, in addition to the Projectindemnity under clause 23.1(b) and to any other rights that ARENA may have, promptly, at the Recipient's expense:
(A) use its best efforts to secure the rights for ARENA to continue to use the affected Licensed Materials free of any claim or liability for infringement; or
(B) replace or modify the affected Licensed Materials so that the Licensed Materials or the use of them does not infringe the Intellectual Property Rights or Moral Rights of any other person without any degradation of the performance or quality of the affected Licensed Materials;
(iii) where required for the Activity, and as advised by ARENA, the Recipient must comply with an Intellectual Property Management Plan when undertaking the Activity.
(i) (Moral Rights): obtain all consents (including any Moral Rights consents or waivers) necessary to perform its obligations under this Agreement;
(j) (Crisis notification):
(i) advise ARENA as soon as possible of any Crisis (and in accordance with any protocol reasonably required by ARENA); and
(ii) notify ARENA as soon as practicable of any significant concerns of local community groups of which the Recipient becomes aware;
(k) (subcontracting):
(i) not enter into a contract subcontract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Workthe Activity, only engage those subcontractors specified in item 14 10 of the Project Activity Details or otherwise approved by ARENA in writing; and;
(iii) without limiting the foregoing, not subcontract all or substantially all of the Activity without ARENA's prior approval;
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project Activity contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement; and
(v) provide a copy of any subcontract entered into by the Recipient for the performance of work for the Activity within 10 Business Days of a request by ARENA;
(il) (insurance): in connection with the ProjectActivity:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the ProjectActivity, including but not limited to those insurances specified in item 16 12 of the Project Activity Details;
(ii) with respect to such insurances:
(A) where the Recipient takes out a ‘claims-claims- made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term term of this Agreement, and a policy in like terms for seven years after the Term; andexpiry or termination of this Agreement;
(B) where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(jm) (books and records): at its own cost, during the Term period of this Agreement and for a period of seven years after the TermEnd Date, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project Activity to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(kn) (monitoring): meet with ARENA at the times and in the manner reasonably required by ARENA to discuss any issues in relation to this Agreement or the Activity;
(o) (conflicts): if, during the ProjectActivity, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable immediately in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage resolve or otherwise deal with the conflict;
(l) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(mp) (bank account): comply with the bank account requirements specified in clause 17 (Bank account);item 2.9 of Schedule 1; and
(nq) (Personnel):
(i) undertake the ProjectActivity, with the active involvement of, and using the expertise of, the Specified Personnel, Personnel identified at item 9 of the Activity Details or as otherwise agreed between the parties in writing;; and
(ii) ensure that each of the Specified Personnel identified at item 9 of the Activity Details, or as agreed between the parties in writing, is aware of and complies with the Recipient's obligations in undertaking the Project;Activity.
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project10.2 The parties acknowledge and agree that:
(Aa) notify ARENA as soon as practicable;
(B) if requested by ARENA, provide a replacement person this Agreement does not affect ownership of suitable ability and qualifications at the earliest opportunityIntellectual Property Rights in any Pre-existing Material or Third Party Material; and
(Cb) obtain ARENA's written consent, which must not be unreasonably withheld, prior all Intellectual Property Rights in the items referred to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements);
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(r) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) the reason for the delay;
(B) the anticipated impact on the Project; and
(C) the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
paragraph (iii) as soon as practicable, of any significant concerns the definition of local community groups of which Licensed Materials vest in the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) it has, or may have, committed a Material Breach; or
(D) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects)upon creation.
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 16.1 The Recipient must:
(a) (Laws): comply with all applicable Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;
(e) (WHS Law):
(i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, and provide updates on the status of any such actions as reasonably required by ARENA;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and
(v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d16.1(b);
(c) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:CCA Law):
(i) procure comply with all applicable CCA Law, and maintain any required accreditation (including as required with respect not do or allow to its subcontractors)be done, or omit or allow to be omitted, anything which may result in the Recipient or ARENA being in breach of CCA Law; and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) that relates to the performance of this Agreement;
(h) (subcontractors and Project Participants) in connection with the Project:
(i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 of the Project Details or otherwise approved by ARENA in writing; and
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 16.1(c);
(d) (privacy):
(i) comply with applicable privacy laws, including the Privacy Act 1988 (Cth);
(ii) promptly notify ARENA in writing if it (or its subcontractors) commits a notifiable data breach within the meaning of the Privacy Act 1988 (Cth); and
(iii) ensure that Personal Information is used solely for the purposes of performing its obligations under this Agreement or otherwise in accordance with the requirements of the Privacy Act 1988 (Cth);
(e) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) for access to a document created by, or in the possession of, the Recipient or any subcontractor that relates to the performance of this Agreement;
(f) (subcontracting):
(i) not enter into a subcontract with a subcontractor named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) in relation to Major Subcontract Work, only engage those subcontractors specified in item 13 of the Project Details or otherwise approved by ARENA in writing; and
(iii) ensure that its contracts with any subcontractors, Project Participants, consultants, or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(g) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 15 of the Project Details;
(ii) with respect to such insurances:
(A) A. where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven 7 years after the Term; andexpiry or termination of this Agreement;
(B) B. where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(jh) (books and records): at its own cost, during the Term period of this Agreement and for a period of seven 7 years after the TermEnd Date, keep, and require its subcontractors for Major Subcontract Work to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(ki) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writingpracticable, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(lj) (visitations): during the Term of this Agreement and for two the 2 years after the Termexpiry or termination of this Agreement, subject to safety and operational requirements and, if required, and appropriate confidentiality agreements obligations being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(mk) (bank account): comply with the bank account requirements specified in clause 17 (Bank account)8;
(nl) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) A. notify ARENA as soon as practicable;
(B) B. if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) C. obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements16.1(l)(iii);
(om) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(pn) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreementrequest;
(qo) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(p) (monitoring): meet with ARENA at the times and in the manner reasonably required by ARENA to discuss any issues in relation to this Agreement or the Project;
(q) (reporting):
(i) comply with the reporting requirements set out in item 3 of Schedule 1 (The Project) and keep ARENA regularly and fully informed regarding the progress of the Project;
(ii) during the Term of this Agreement, and for a period of five years following the Final Milestone Date, where requested by ARENA:
(A) cooperate in providing to ARENA data with respect to calculating and reports in the carbon abatement resulting from the Project; and
(B) provide a report on the number of direct jobs (including any permanent roles, contractors, subcontractors and consultants) created during the construction and operation phases of the Project;
(r) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) A. the reason for the delay;
(B) B. the anticipated impact on the Project; and;
(C) C. the steps the Recipient is taking or will take to overcome the delay,
(ii) , and keep ARENA updated as to the status of any such notified delay; and.
(iiiii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iii) as soon as practicable, if it has received, or requested to receive, other funds from the Commonwealth or State or Territory for the Project; and
(iv) immediately, if it becomes aware:
(A) A. of any significant matter that may impact on the delivery of the project, including its Outputs or OutcomesCrisis (and in accordance with any protocol reasonably required by ARENA);
(B) B. it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) C. it has, or may have, committed a Material Breach; or
(D) D. an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Modern Slavery ActIntellectual Property):
(i) comply with any applicable requirements grant to, or obtain for, ARENA a perpetual, irrevocable, world-wide, royalty-free, fee-free, non-exclusive licence to use, reproduce, adapt, modify, communicate, broadcast, distribute, publish, disseminate, and sublicense the Licensed Materials solely for the purpose of giving effect to the Knowledge Sharing Plan or to carry out its objectives under the Modern Slavery Act 2018 (Cth)ARENA Act, but not including the right to exploit the Licensed Materials for commercial purposes;
(ii) take reasonable steps if someone claims, or ARENA reasonably believes that someone is likely to identifyclaim, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision that all or part of the Project;Licensed Materials or their use in accordance with this Agreement infringe their Intellectual Property Rights or Moral Rights, in addition to the indemnity under clause 32 and to any other rights that ARENA may have, promptly, at the Recipient's expense:
A. use its best efforts to secure the rights for ARENA to continue to use the affected Licensed Materials free of any claim or liability for infringement; or
B. replace or modify the affected Licensed Materials so that the Licensed Materials or the use of them does not infringe the Intellectual Property Rights or Moral Rights of any other person without any degradation of the performance or quality of the affected Licensed Materials; and
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of where required for the Project, promptly notify ARENA and take all reasonable action to address or remove these practicesas agreed between the parties, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Actan Intellectual Property Management Plan as set out in item 3.2 of Schedule 1 (The Project) when undertaking the Project; and
(t) (Major ProjectsMoral Rights): obtain all consents (including any Moral Rights consents or waivers) necessary to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects)perform its obligations under this Agreement.
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 14.1 The Recipient must:
(a) (Lawscooperation): comply cooperate with all applicable LawsARENA and other parties, and attend any meetings, as requested by ARENA, acting reasonably;
(b) (sanctionsstandards): undertake the Activity diligently, efficiently, safely and to a high professional standard and in connection accordance with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractorsthis Agreement;
(c) (fraudreporting): immediately notify ARENA in writing of any fraud or suspected fraud in connection comply with the Project reporting requirements set out in item 3 of Schedule 1 and take such action as keep ARENA reasonably requires to manage regularly and fully informed regarding progress of the fraudActivity;
(d) (Change Laws): comply with:
(i) all applicable Laws; and
(ii) all relevant Australian industry standards, best practice and guidelines (including those specified in Control): promptly notify ARENA of any Change in Control or likely Change in Control item 3 of the RecipientActivity Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(e) (WHS Law):
(i) comply with applicable the WHS Law, and not do or allow to be done, or omit or allow to be omitted, omitted anything which may result in ARENA being in breach of the WHS Law;
(ii) immediately notify ARENA of any incidents which are notifiable incidents under WHS Law, accidents, injuries, injuries or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident)Activity;
(iii) in relation to any WHS Notifiable Incident, if requestedincident notified, provide to ARENA an investigation report containing findings on the causes and effects of, and corrective and preventative actions arising from, any accident, notifiable incident, injury or damage to property, and following the incident andcompletion of an investigation report, provide updates on where requested by ARENA, a report identifying the status of any such preventative or corrective actions as reasonably required by ARENAidentified in that investigation report;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; andnotifiable incident or accident, injury or damage to property of a serious nature;
(vf) (privacy): use and ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating the use of Personal Information (as defined in the Project contain those provisions necessary to enable Privacy Xxx 0000 (Cth)) provided by ARENA or collected by or for the Recipient to comply in connection with this Agreement only for the purposes of performing its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this ProjectAgreement;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 Xxx 0000 (Cth) for access to a document created by, or in the possession of, the Recipient or any subcontractor that relates to the performance of this Agreement (and not to the entry into this Agreement), including providing assistance to object to a request where an exemption applies to a document;
(h) (subcontractors Intellectual Property):
(i) grant to, or obtain for, ARENA a perpetual, irrevocable, world-wide, royalty-free, fee- free, non-exclusive licence to use, reproduce, adapt, modify, communicate, broadcast, distribute, publish, disseminate and Project Participantssublicense the Licensed Materials solely for the purpose of giving effect to the Knowledge Sharing Plan or to carry out its objectives under the ARENA Act;
(ii) if someone claims, or ARENA reasonably believes that someone is likely to claim, that all or part of the Licensed Materials or their use in connection accordance with this Agreement infringe their Intellectual Property Rights or Moral Rights, in addition to the Projectindemnity under clause 27 and to any other rights that ARENA may have, promptly, at the Recipient's expense:
A. use its best efforts to secure the rights for ARENA to continue to use the affected Licensed Materials free of any claim or liability for infringement; or
B. replace or modify the affected Licensed Materials so that the Licensed Materials or the use of them does not infringe the Intellectual Property Rights or Moral Rights of any other person without any degradation of the performance or quality of the affected Licensed Materials;
(i) (Moral Rights): obtain all consents (including any Moral Rights consents or waivers) necessary to perform its obligations under this Agreement;
(j) (Crisis notification):
(i) advise ARENA as soon as possible of any Crisis (and in accordance with any protocol reasonably required by ARENA); and
(ii) notify ARENA as soon as practicable of any significant concerns of local community groups in relation to the Activity of which the Recipient becomes aware;
(k) (subcontracting):
(i) not enter into a contract subcontract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract WorkWork with respect to the Activity, only engage those subcontractors specified in item 14 16 of the Project Activity Details or otherwise approved by ARENA in writing; and;
(iviii) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project Activity contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(iiv) unless otherwise notified by ARENA in accordance with clause 29, notify ARENA of any subcontractors engaged for the performance of work for the Activity;
(l) (insurance): in connection with the ProjectActivity:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the ProjectActivity, including but not limited to those insurances specified in item 16 18 of the Project Activity Details;
(ii) with respect to such insurances:
(A) A. where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in item a claim to be notified within the period of insurance, maintain the policy during the Term term of this Agreement, and a policy in like terms for seven years after the Term; andexpiry or termination of this Agreement;
(B) B. where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates works or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintainedservices;
(jm) (books and records): at its own cost, during the Term period of this Agreement and for a period of seven years after the TermEnd Date, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project Activity to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(kn) (monitoring): meet with ARENA at the times and in the manner reasonably required by ARENA to discuss any issues in relation to this Agreement or the Activity;
(o) (Change in Control): promptly provide written notice to ARENA of any actual or proposed Change in Control;
(p) (conflicts): if, during the ProjectActivity, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable immediately in writing, make full disclosure of all relevant information relating to the conflict conflict, and take such steps as ARENA requires to manage resolve or otherwise deal with the conflict;
(lq) (visitations): during the Term term of this Agreement and for two 2 years after the Termexpiry or termination of this Agreement, subject to safety and operational requirements and, if required, and appropriate confidentiality agreements obligations being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is Activities are conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is Activities are conducted;
(iii) demonstrate the Project Activities to Visitors and relevant technology and provide detailed explanations where requested; and;
(iv) allow ARENA representatives to be present at visits;
(mr) (bank account): comply with the bank account requirements specified in clause 17 (Bank account)6;
(ns) (acquittal statement): at the time and in the manner specified in item 3.1 of Schedule 1, provide ARENA with an acquittal statement setting out the ARENA Funding paid by ARENA under this Agreement and the total Eligible Expenditure incurred by the Recipient in undertaking the Activity signed by an officeholder of the Recipient; and
(t) (Personnel):
(i) undertake the ProjectActivity, or any part of the Activity to which their particular expertise relates, with the active involvement of, and using the expertise of, the Specified Personnel, Personnel or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the ProjectActivity;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) A. notify ARENA as soon as practicableimmediately;
(B) B. if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) C. obtain ARENA's written consent, consent (which must not be unreasonably withheld, ) prior to appointing any such replacement person. ARENA's consent will not be unreasonably withheld; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements14.1(t)(iii);; and
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(ru) (notification): notwithstanding any other provision of this Agreement, notify ARENAARENA immediately if it becomes aware that:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) the reason for the delay;
(B) the anticipated impact on the Project; and
(C) the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project Activity as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(Cii) it has, or may have, committed a Material Breach; or;
(Diii) it has received, or requested to receive, other funds from the Commonwealth for the Activity; and/or
(iv) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;.
14.2 The parties acknowledge and agree that:
(sa) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision this Agreement does not affect ownership of the Project;
(iii) if at Intellectual Property Rights in any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address Pre- existing Material or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achievedThird Party Material; and
(ivb) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to all Intellectual Property Rights in the extent required by Agreement Material vest in the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects)Recipient upon creation.
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 The Recipient must:
(a) (Laws): comply with all applicable Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;
(e) (WHS Law):
(i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates on the status of any such actions as reasonably required by ARENA;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and
(v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) that relates to the performance of this Agreement;
(h) (subcontractors and Project Participants) in connection with the Project:
(i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 of the Project Details or otherwise approved by ARENA in writing; and
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(i) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 of the Project Details;
(ii) with respect to such insurances:
(A) A. where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven 7 years after the Term; and
(BA) where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(j) (books and records): at its own cost, during the Term of this Agreement and for a period of seven 7 years after the Term, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(k) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(l) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(m) (bank account): comply with the bank account requirements specified in clause 17 (Bank account)17;
(n) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) notify ARENA as soon as practicable;
(B) if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements);
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(r) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) the reason for the delay;
(B) the anticipated impact on the Project; and
(C) the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) it has, or may have, committed a Material Breach; or
(D) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects).
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 The Recipient must:
(a) (Laws): comply with all applicable Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;
(e) (WHS Law):
(i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates on the status of any such actions as reasonably required by ARENA;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and
(v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) that relates to the performance of this Agreement;
(h) (subcontractors and Project Participants) in connection with the Project:
(i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 of the Project Details or otherwise approved by ARENA in writing; and
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(i) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 of the Project Details;
(ii) with respect to such insurances:
(A) A. where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven 7 years after the Term; and
(B) B. where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(j) (books and records): at its own cost, during the Term of this Agreement and for a period of seven 7 years after the Term, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(k) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(l) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(m) (bank account): comply with the bank account requirements specified in clause 17 (Bank account)17;
(n) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) A. notify ARENA as soon as practicable;
(B) B. if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) C. obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements);
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(r) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) A. the reason for the delay;
(B) B. the anticipated impact on the Project; and
(C) C. the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) it has, or may have, committed a Material Breach; or
(D) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects).
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 The Recipient must:
(a) (Laws): comply with all applicable Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;
(e) (WHS Law):
(i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates on the status of any such actions as reasonably required by ARENA;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and
(v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) that relates to the performance of this Agreement;
(h) (subcontractors and Project Participants) in connection with the Project:
(i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 15 of the Project Details or otherwise approved by ARENA in writing; and
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(i) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 17 of the Project Details;
(ii) with respect to such insurances:
(A) where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven years after the Term; and
(B) where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(j) (books and records): at its own cost, during the Term of this Agreement and for a period of seven years after the Term, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(k) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(l) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(m) (bank account): comply with the bank account requirements specified in clause 17 (Bank account);
(n) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) notify ARENA as soon as practicable;
(B) if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements);
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 5 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(r) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) the reason for the delay;
(B) the anticipated impact on the Project; and
(C) the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) it has, or may have, committed a Material Breach; or
(D) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects).
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 14.1 The Recipient must:
(a) (Lawscooperation): comply cooperate with all applicable LawsARENA and other parties, and attend any meetings, as requested by ARENA, acting reasonably;
(b) (sanctionsstandards): undertake the Activity diligently, efficiently, safely and to a high professional standard and in connection accordance with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractorsthis Agreement;
(c) (fraudreporting): immediately notify ARENA in writing of any fraud or suspected fraud in connection comply with the Project reporting requirements set out in item 3 of Schedule 1 and take such action as keep ARENA reasonably requires to manage regularly and fully informed regarding progress of the fraudActivity;
(d) (Change Laws): comply with:
(i) all applicable Laws; and
(ii) all relevant Australian industry standards, best practice and guidelines (including those specified in Control): promptly notify ARENA of any Change in Control or likely Change in Control item 3 of the RecipientActivity Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(e) (WHS Law):
(i) comply with applicable the WHS Law, and not do or allow to be done, or omit or allow to be omitted, omitted anything which may result in ARENA being in breach of the WHS Law;
(ii) immediately notify ARENA of any incidents which are notifiable incidents under WHS Law, accidents, injuries, injuries or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident)Activity;
(iii) in relation to any WHS Notifiable Incident, if requestedincident notified, provide to ARENA an investigation report containing findings on the causes and effects of, and corrective and preventative actions arising from, any accident, notifiable incident, injury or damage to property, and following the incident andcompletion of an investigation report, provide updates on where requested by ARENA, a report identifying the status of any such preventative or corrective actions as reasonably required by ARENAidentified in that investigation report;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; andnotifiable incident or accident, injury or damage to property of a serious nature;
(vf) (privacy): use and ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating the use of Personal Information (as defined in the Project contain those provisions necessary to enable Privacy Xxx 0000 (Cth)) provided by ARENA or collected by or for the Recipient to comply in connection with this Agreement only for the purposes of performing its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this ProjectAgreement;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 Xxx 0000 (Cth) for access to a document created by, or in the possession of, the Recipient or any subcontractor that relates to the performance of this Agreement (and not to the entry into this Agreement), including providing assistance to object to a request where an exemption applies to a document;
(h) (subcontractors Intellectual Property):
(i) grant to, or obtain for, ARENA a perpetual, irrevocable, world-wide, royalty-free, fee-free, non-exclusive licence to use, reproduce, adapt, modify, communicate, broadcast, distribute, publish, disseminate and Project Participantssublicense the Licensed Materials solely for the purpose of giving effect to the Knowledge Sharing Plan or to carry out its objectives under the ARENA Act;
(ii) if someone claims, or ARENA reasonably believes that someone is likely to claim, that all or part of the Licensed Materials or their use in connection accordance with this Agreement infringe their Intellectual Property Rights or Moral Rights, in addition to the Projectindemnity under clause 27 and to any other rights that ARENA may have, promptly, at the Recipient's expense:
(A) use its best efforts to secure the rights for ARENA to continue to use the affected Licensed Materials free of any claim or liability for infringement; or
(B) replace or modify the affected Licensed Materials so that the Licensed Materials or the use of them does not infringe the Intellectual Property Rights or Moral Rights of any other person without any degradation of the performance or quality of the affected Licensed Materials;
(i) (Moral Rights): obtain all consents (including any Moral Rights consents or waivers) necessary to perform its obligations under this Agreement;
(j) (Crisis notification):
(i) advise ARENA as soon as possible of any Crisis (and in accordance with any protocol reasonably required by ARENA); and
(ii) notify ARENA as soon as practicable of any significant concerns of local community groups in relation to the Activity of which the Recipient becomes aware;
(k) (subcontracting):
(i) not enter into a contract subcontract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract WorkWork with respect to the Activity, only engage those subcontractors specified in item 14 16 of the Project Activity Details or otherwise approved by ARENA in writing; and;
(iviii) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project Activity contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(iiv) unless otherwise notified by ARENA in accordance with clause 29, notify ARENA of any subcontractors engaged for the performance of work for the Activity;
(l) (insurance): in connection with the ProjectActivity:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the ProjectActivity, including but not limited to those insurances specified in item 16 18 of the Project Activity Details;
(ii) with respect to such insurances:
(A) where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in item a claim to be notified within the period of insurance, maintain the policy during the Term term of this Agreement, and a policy in like terms for seven years after the Term; andexpiry or termination of this Agreement;
(B) where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates works or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintainedservices;
(jm) (books and records): at its own cost, during the Term period of this Agreement and for a period of seven years after the TermEnd Date, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project Activity to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(kn) (monitoring): meet with ARENA at the times and in the manner reasonably required by ARENA to discuss any issues in relation to this Agreement or the Activity;
(o) (Change in Control): promptly provide written notice to ARENA of any actual or proposed Change in Control;
(p) (conflicts): if, during the ProjectActivity, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable immediately in writing, make full disclosure of all relevant information relating to the conflict conflict, and take such steps as ARENA requires to manage resolve or otherwise deal with the conflict;
(lq) (visitations): during the Term term of this Agreement and for two 2 years after the Termexpiry or termination of this Agreement, subject to safety and operational requirements and, if required, and appropriate confidentiality agreements obligations being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is Activities are conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is Activities are conducted;
(iii) demonstrate the Project Activities to Visitors and relevant technology and provide detailed explanations where requested; and;
(iv) allow ARENA representatives to be present at visits;
(mr) (bank account): comply with the bank account requirements specified in clause 17 (Bank account)6;
(ns) (acquittal statement): at the time and in the manner specified in item 3.1 of Schedule 1, provide ARENA with an acquittal statement setting out the ARENA Funding paid by ARENA under this Agreement and the total Eligible Expenditure incurred by the Recipient in undertaking the Activity signed by an officeholder of the Recipient; and
(t) (Personnel):
(i) undertake the ProjectActivity, or any part of the Activity to which their particular expertise relates, with the active involvement of, and using the expertise of, the Specified Personnel, Personnel or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the ProjectActivity;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) notify ARENA as soon as practicableimmediately;
(B) if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) obtain ARENA's written consent, consent (which must not be unreasonably withheld, ) prior to appointing any such replacement person. ARENA's consent will not be unreasonably withheld; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements14.1(t)(iii);; and
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(ru) (notification): notwithstanding any other provision of this Agreement, notify ARENAARENA immediately if it becomes aware that:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) the reason for the delay;
(B) the anticipated impact on the Project; and
(C) the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project Activity as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(Cii) it has, or may have, committed a Material Breach; or;
(Diii) it has received, or requested to receive, other funds from the Commonwealth for the Activity; and/or
(iv) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;.
14.2 The parties acknowledge and agree that:
(sa) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision this Agreement does not affect ownership of the Project;
(iii) if at Intellectual Property Rights in any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address Pre- existing Material or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achievedThird Party Material; and
(ivb) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to all Intellectual Property Rights in the extent required by Agreement Material vest in the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects)Recipient upon creation.
Appears in 1 contract
Undertakings and Acknowledgements. 22.1 20.1 The Recipient must:
(a) (Laws): comply with all applicable Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;
(e) (WHS Law):
(i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates on the status of any such actions as reasonably required by ARENA;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and
(v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d) (Undertakings and Acknowledgements20.1(d); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) that relates to the performance of this Agreement;
(hg) (subcontractors and Project Participants) in connection with the Project:
(i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 0 of the Project Details or otherwise approved by ARENA in writing; and
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(ih) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 0 of the Project Details;
(ii) with respect to such insurances:
(A) A. where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven 7 years after the Term; and
(BA) where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;; TRAC Program Funding Agreement | [insert Project title]
(ji) (books and records): at its own cost, during the Term of this Agreement and for a period of seven 7 years after the Term, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(kj) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(lk) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(ml) (bank account): comply with the bank account requirements specified in clause 17 (Bank account)15;
(nm) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) notify ARENA as soon as practicable;
(B) if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements20.1(m)(iii);
(on) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(po) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(qp) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 0 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(rq) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) the reason for the delay;
(B) the anticipated impact on the Project; and
(C) the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) it has, or may have, committed a Material Breach; oror TRAC Program Funding Agreement | [insert Project title]
(D) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(sr) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects).
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 16.1 The Recipient must:
(a) (Laws): comply with all applicable Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;
(e) (WHS Law):
(i) comply with applicable the WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of the WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report containing findings on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates following the completion of an investigation report, such information on the status of any such actions as reasonably required by ARENA;; and
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and;
(vc) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to (privacy):
(i) comply with applicable privacy laws, including the Privacy Act 1988 (Cth);
(ii) promptly notify ARENA in writing if it (or its obligations under this clause 22.1(dsubcontractors) commit a notifiable data breach within the meaning of the Privacy Act 1988 (Undertakings and AcknowledgementsCth); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(iiiii) ensure ARENA that Personal Information is kept updated as to used solely for the status purposes of any such accreditation, including with respect to performing its subcontractors for obligations under this ProjectAgreement;
(gd) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) for access to a document created by, or in the possession of, the Recipient or any subcontractor that relates to the performance of this Agreement;
(he) (subcontractors and Project Participants) in connection with the Project:subcontracting):
(i) not enter into a contract subcontract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract WorkWork with respect to the Project, only engage those subcontractors specified in item 14 13 of the Project Details or otherwise approved by ARENA in writing; and
(iviii) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(if) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 15 of the Project Details;
(ii) with respect to such insurances:
(A) A. where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term term of this Agreement, and a policy in like terms for seven 7 years after the Term; andexpiry or termination of this Agreement;
(B) B. where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(jg) (books and records): at its own cost, during the Term period of this Agreement and for a period of seven 7 years after the TermEnd Date, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(kh) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable immediately in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(li) (visitations): during the Term term of this Agreement and for two the 2 years after the Termexpiry or termination of this Agreement, subject to safety and operational requirements and, if required, and appropriate confidentiality agreements obligations being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is Activities are conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is Activities are conducted;
(iii) demonstrate the Project Activities to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(mj) (bank account): comply with the bank account requirements specified in clause 17 (Bank account)8;
(nk) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) A. notify ARENA as soon as practicableimmediately;
(B) B. if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) C. obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements16.1(k)(iii);
(ol) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(pm) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreementrequest;
(qn) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(ro) (monitoring): meet with ARENA at the times and in the manner reasonably required by ARENA to discuss any issues in relation to this Agreement or the Project;
(p) (reporting): comply with the reporting requirements set out in item 3 of Schedule 1 (The Project) and keep ARENA regularly and fully informed regarding the progress of the Project;
(q) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) A. the reason for the delay;
(B) B. the anticipated impact on the Project; and;
(C) C. the steps the Recipient is taking or will take to overcome the delay,
(ii) , and keep ARENA updated as to the status of any such notified delay; and.
(iiiii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iii) as soon as practicable, if it has received, or requested to receive, other funds from the Commonwealth for the Project; and
(iv) immediately, if it becomes aware:
(A) A. of any significant matter that may impact on the delivery of the project, including its Outputs or OutcomesCrisis (and in accordance with any protocol reasonably required by ARENA);
(B) B. it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) C. it has, or may have, committed a Material Breach; or
(D) D. an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(sr) (Modern Slavery ActIntellectual Property):
(i) comply with any applicable requirements grant to, or obtain for, ARENA a perpetual, irrevocable, world-wide, royalty-free, fee- free, non-exclusive licence to use, reproduce, adapt, modify, communicate, broadcast, distribute, publish, disseminate and sublicense the Licensed Materials solely for the purpose of giving effect to the Knowledge Sharing Plan or to carry out its objectives under the Modern Slavery Act 2018 (Cth)ARENA Act, but not including the right to exploit the Licensed Materials for commercial purposes;
(ii) take reasonable steps if someone claims, or ARENA reasonably believes that someone is likely to identifyclaim, assess that all or part of the Licensed Materials or their use in accordance with this Agreement infringe their Intellectual Property Rights or Moral Rights, in addition to the indemnity under clause 32 and address risks to any other rights that ARENA may have, promptly, at the Recipient's expense:
A. use its best efforts to secure the rights for ARENA to continue to use the affected Licensed Materials free of Modern Slavery practices any claim or liability for infringement; or
B. replace or modify the affected Licensed Materials so that the Licensed Materials or the use of them does not infringe the Intellectual Property Rights or Moral Rights of any other person without any degradation of the performance or quality of the affected Licensed Materials; and
(iii) where required for the Project, and as agreed between the parties, comply with an Intellectual Property Management Plan as set out in the operations and supply chains used in the provision item 3.2 of Schedule 1 (The Project) when undertaking the Project;
(iiis) if at (Moral Rights): obtain all consents (including any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action Moral Rights consents or waivers) necessary to address or remove these practices, including, where relevant, by addressing any practices of other entities in perform its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Actthis Agreement; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENAif applicable, comply with the requirements set out in Schedule 3 (Major Projects).
16.2 The parties acknowledge and agree that:
(a) this Agreement does not affect ownership of the Intellectual Property Rights in any Pre-existing Material or Third Party Material; and
(b) subject to clause 16.1(r), all Intellectual Property Rights in Agreement Material vest in the Recipient upon creation.
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 The Recipient must:must:
(a) (Laws): comply with all applicable Laws;Laws;
(b) (sanctions): in connection with the Project, comply, and ensure that any Related Bodies Corporate comply, with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractors;
(c) (fraud): immediately notify ARENA in writing of any fraud or suspected fraud in connection with the Project and take such action as ARENA reasonably requires to manage the fraud;
(d) (Change in Control): promptly notify ARENA of any Change in Control or likely Change in Control of the Recipient;Recipient;
(e) (WHS Law):
(i) comply with applicable WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident);
(iii) in relation to any WHS Notifiable Incident, if requested, provide to ARENA an investigation report on the causes and effects of, and corrective and preventative actions arising from, the incident and, provide updates on the status of any such actions as reasonably required by ARENA;
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; and
(v) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this Project;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) that relates to the performance of this Agreement;
(h) (subcontractors and Project Participants) in connection with the Project:
(i) not enter into a contract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract Work, only engage those subcontractors specified in item 14 of the Project Details or otherwise approved by ARENA in writing; and
(iv) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement;
(i) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 of the Project Details;
(ii) with respect to such insurances:
(A) where the Recipient takes out a ‘claims-made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term of this Agreement, and a policy in like terms for seven years after the Term; and
(B) where the Recipient takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(j) (books and records): at its own cost, during the Term of this Agreement and for a period of seven years after the Term, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(k) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage the conflict;
(l) (visitations): during the Term of this Agreement and for two years after the Term, subject to safety and operational requirements and, if required, appropriate confidentiality agreements being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is conducted;
(iii) demonstrate the Project to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(m) (bank account): comply with the bank account requirements specified in clause 17 (Bank account);
(n) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) notify ARENA as soon as practicable;
(B) if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) obtain ARENA's written consent, which must not be unreasonably withheld, prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s or its subcontractors’ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements);
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(r) (notification): notwithstanding any other provision of this Agreement, notify ARENA:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) the reason for the delay;
(B) the anticipated impact on the Project; and
(C) the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(C) it has, or may have, committed a Material Breach; or
(D) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects).least:
Appears in 1 contract
Samples: Funding Agreement
Undertakings and Acknowledgements. 22.1 16.1 The Recipient must:
(a) (Lawscooperation): comply cooperate with all applicable LawsARENA and other parties, and attend any meetings, as requested by ARENA, acting reasonably;
(b) (sanctionsstandards): in connection with undertake the ProjectProject diligently, complyefficiently, safely and to a high professional standard, and ensure that any Related Bodies Corporate comply, in accordance with Australian Sanctions Laws and use reasonable endeavours to ensure compliance by any of its subcontractorsthis Agreement;
(c) (fraudreporting): immediately notify ARENA in writing of any fraud or suspected fraud in connection comply with the Project reporting requirements set out in item 3 of Schedule 1 and take such action as keep ARENA reasonably requires to manage regularly and fully informed regarding progress of the fraudProject;
(d) (Change Laws): comply with:
(i) all applicable Laws; and
(ii) all relevant Australian industry standards, codes, best practice and guidelines (including those specified in Control): promptly notify ARENA of any Change in Control or likely Change in Control item 4 of the RecipientProject Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(e) (WHS Law):
(i) comply with applicable the WHS Law, and not do or allow to be done, or omit or allow to be omitted, anything which may result in ARENA being in breach of the WHS Law;
(ii) immediately notify ARENA of any notifiable incidents under WHS Law, accidents, injuries, injuries or damage to property of a serious nature that occurs in connection with the Project (WHS Notifiable Incident)Project;
(iii) in relation to any WHS Notifiable Incidentnotifiable incident, if requestedaccident, injury or damage to property of a serious nature, provide to ARENA an investigation report containing findings on the causes and effects of, and corrective and preventative actions arising from, from the incident and, provide updates on following the completion of an investigation report, a monthly report identifying the status of any such preventative or corrective actions as reasonably required by ARENA;identified in that investigation report; and
(iv) cooperate with ARENA as required in relation to any WHS Notifiable Incident; andnotifiable incident, accident, injury or damage to property of a serious nature;
(vf) (privacy): use and ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating the use of Personal Information (as defined in the Project contain those provisions necessary to enable Privacy Act 1988 (Cth)) provided by ARENA or collected by or for the Recipient to comply in connection with this Agreement only for the purposes of performing its obligations under this clause 22.1(d) (Undertakings and Acknowledgements); and
(f) [Drafting note: The WHS Accreditation Scheme applies to Building Work that is: directly funded by ARENA and the value is greater than $4 million; or indirectly funded by ARENA if it is carried out under a contract with a value of $4 million or more (GST incl.) and the contribution made to the funding of the project by ARENA is at least: $6 million (GST inclusive) and represents at least 50% of the total funding; or $10 million.] (WHS Accreditation Scheme): where the Recipient or its subcontractor undertakes Building Work in carrying out the Project, to the extent required by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Recipient must, in accordance with applicable requirements of the Work Health and Safety Accreditation Scheme:
(i) procure and maintain any required accreditation (including as required with respect to its subcontractors); and
(ii) ensure ARENA is kept updated as to the status of any such accreditation, including with respect to its subcontractors for this ProjectAgreement;
(g) (FOI): assist ARENA to comply with any request under the Freedom of Information Act 1982 (Cth) for access to a document created by, or in the possession of, the Recipient or any subcontractor that relates to the performance of this Agreement (and not to the entry into this Agreement), including providing assistance to object to a request where an exemption applies to a document;
(h) (subcontractors Intellectual Property):
(i) grant to, or obtain for, ARENA a perpetual, irrevocable, world-wide, royalty-free, fee- free, non-exclusive licence to use, reproduce, adapt, modify, communicate, broadcast, distribute, publish, disseminate and Project Participantssublicense the Licensed Materials solely for the purpose of giving effect to the Knowledge Sharing Plan or to carry out its objectives under the ARENA Act, but does not include the right to exploit the Licensed Materials for commercial purposes;
(ii) if someone claims, or ARENA reasonably believes that someone is likely to claim, that all or part of the Licensed Materials or their use in connection accordance with this Agreement infringe their Intellectual Property Rights or Moral Rights, in addition to the indemnity under clause 33 and to any other rights that ARENA may have, promptly, at the Recipient's expense:
A. use its best efforts to secure the rights for ARENA to continue to use the affected Licensed Materials free of any claim or liability for infringement; or
B. replace or modify the affected Licensed Materials so that the Licensed Materials or the use of them does not infringe the Intellectual Property Rights or Moral Rights of any other person without any degradation of the performance or quality of the affected Licensed Materials; and
(iii) where required for the Project:, and as agreed between the parties, the Recipient must comply with an Intellectual Property Management Plan as set out in item 3.2 of Schedule 1 when undertaking the Project.
(i) (Moral Rights): obtain all consents (including any Moral Rights consents or waivers) necessary to perform its obligations under this Agreement;
(j) (Crisis notification):
(i) advise ARENA as soon as possible of any Crisis (and in accordance with any protocol reasonably required by ARENA); and
(ii) notify ARENA as soon as practicable of any significant concerns of local community groups of which the Recipient becomes aware;
(k) (subcontracting):
(i) not enter into a contract subcontract with a subcontractor or Project Participant named as an organisation that has not complied with the Workplace Gender Equality Act 2012 (Cth);
(ii) not enter into a contract if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used by a subcontractor or Project Participant unless the Recipient takes reasonable action to address or remove these practices;
(iii) and in relation to Major Subcontract WorkWork with respect to the Project, only engage those subcontractors specified in item 14 of the Project Details or otherwise approved by ARENA in writing; and;
(iviii) ensure that its contracts with any subcontractors, Project Participants, consultants or other persons participating in the Project contain those provisions necessary to enable the Recipient to comply with its obligations under this Agreement; and
(iv) unless otherwise stipulated by ARENA in accordance with clause 35, notify ARENA of any subcontractors engaged for the performance of work for the Project;
(il) (insurance): in connection with the Project:
(i) have and maintain the insurances that would be maintained by a prudent business undertaking the Project, including but not limited to those insurances specified in item 16 of the Project Details;
(ii) with respect to such insurances:
(A) A. where the Recipient takes out a ‘„claims-made’ made‟ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, maintain the policy during the Term term of this Agreement, and a policy in like terms for seven (7) years after the Term; andexpiry or termination of this Agreement;
(B) B. where the Recipient takes out an ‘occurrence’ „occurrence‟ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of an event can occur at any time subsequently, maintain the policy during the Term term of this Agreement; and
(iii) ensure that its subcontractors have and maintain appropriate insurance to cover the risk of the subcontractors' works, and, if requested by ARENA, provide certificates or other sufficient evidence to satisfy ARENA that such insurances have been procured and maintained;
(jm) (books and records): at its own cost, during the Term period of this Agreement and for a period of seven (7) years after the TermEnd Date, keep, and require its subcontractors to keep, adequate books and records in sufficient detail to enable:
(i) all receipts and payments related to the Project to be identified and reported to ARENA; and
(ii) the amounts payable by ARENA under this Agreement to be determined or verified;
(kn) (monitoring): meet with ARENA at the times and in the manner reasonably required by ARENA to discuss any issues in relation to this Agreement or the Project;
(o) (conflicts): if, during the Project, a conflict of interest arises, or appears likely to arise, notify ARENA as soon as practicable immediately in writing, make full disclosure of all relevant information relating to the conflict and take such steps as ARENA requires to manage resolve or otherwise deal with the conflict;
(lp) (visitations): during the Term term of this Agreement and for the two (2) years after the Termexpiry or termination of this Agreement, subject to safety and operational requirements and, if required, and appropriate confidentiality agreements obligations being entered into:
(i) allow and provide ARENA escorted visits by interested persons approved by ARENA or the Recipient (Visitors) to sites under the Recipient's control where the Project is Activities are conducted;
(ii) use best endeavours to obtain permission for escorted visits by Visitors to sites not under the Recipient's control where the Project is Activities are conducted;
(iii) demonstrate the Project Activities to Visitors and relevant technology and provide detailed explanations where requested; and
(iv) allow ARENA representatives to be present at visits;
(mq) (bank account): comply with the bank account requirements specified in clause 17 (Bank account)8;
(nr) (Personnel):
(i) undertake the Project, with the active involvement of, and using the expertise of, the Specified Personnel, Personnel or as otherwise agreed between the parties in writing;
(ii) ensure that each of the Specified Personnel is aware of and complies with the Recipient's obligations in undertaking the Project;
(iii) where one or more of the Specified Personnel is, or will become, unable or unwilling to be involved in the Project:
(A) A. notify ARENA as soon as practicableimmediately;
(B) B. if requested by ARENA, provide a replacement person of suitable ability and qualifications at the earliest opportunity; and
(C) C. obtain ARENA's written consent, consent (which must not be unreasonably withheld, ) prior to appointing any such replacement person; and
(iv) if reasonably requested by ARENA, promptly remove any of the Recipient’s Recipient‟s or its subcontractors’ subcontractors‟ Personnel from carrying out work on the Project, and arrange for their replacement in accordance with clause 22.1(n)(iii) (Undertakings and Acknowledgements);16.1(r)(iii)C; and
(o) (other transactions or contracts): with respect to any other transaction or contract connected with the Project to be entered into with a third party (including a subcontractor), comply with all contractual obligations, including with respect to prompt payment of subcontractors and other contracted parties;
(p) (cooperate): cooperate with ARENA and other parties, including by attending any meetings on ARENA’s reasonable request to discuss any issues related to the delivery of the Project or the performance of obligations under this Agreement;
(q) (standards): undertake the Project diligently, efficiently, safely and to a high professional standard, in accordance with this Agreement and all relevant Australian industry standards, codes, best practice and guidelines (including those specified in item 4 of the Project Details) or, where none apply, relevant international industry standards, best practice and guidelines;
(rs) (notification): notwithstanding any other provision of this Agreement, notify ARENAARENA immediately if it becomes aware that:
(i) promptly in writing of any delay or anticipated delay to the progress of the Project or achievement of a Milestone; providing:
(A) the reason for the delay;
(B) the anticipated impact on the Project; and
(C) the steps the Recipient is taking or will take to overcome the delay,
(ii) keep ARENA updated as to the status of any such notified delay; and
(iii) as soon as practicable, of any significant concerns of local community groups of which the Recipient becomes aware;
(iv) immediately, if it becomes aware:
(A) of any significant matter that may impact on the delivery of the project, including its Outputs or Outcomes;
(B) it has not undertaken the Project as required under this Agreement or has not spent the ARENA Funding in accordance with this Agreement;
(Cii) it has, or may have, committed a Material Breach; or;
(Diii) it has received, or requested to receive, other funds from the Commonwealth for the Project; and/or
(iv) an Insolvency Event has occurred or is likely to occur with respect to the Recipient;
(s) (Modern Slavery Act):
(i) comply with any applicable requirements under the Modern Slavery Act 2018 (Cth);
(ii) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Project;
(iii) if at any time the Recipient becomes aware of Modern Slavery practices in the operations and supply chains used in the provision of the Project, promptly notify ARENA and take all reasonable action to address or remove these practices, including, where relevant, by addressing any practices of other entities in its supply chains and, if requested by ARENA, provide a remediation plan, in a form and substance reasonably required by ARENA, to ARENA that describes how this will be achieved; and
(iv) provide information to ARENA as reasonably requested to enable ARENA to comply with its reporting obligations under that Act; and
(t) (Major Projects): to the extent required by the Jobs Act 2013 (Cth) or otherwise as required by ARENA, comply with the requirements set out in Schedule 3 (Major Projects).
Appears in 1 contract
Samples: Funding Agreement
