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Many community organisations require an Auspicing Agreement to formalise working together or other joint objectives.

This base template (commencing over page) provides an example of the way an Auspicing Agreement can be set out and the types of details it may include. At the end of this template is also a checklist of all the matters that will to be considered to change the template (where it is indicated that change is needed).Not all clauses may be relevant to your organisation’s needs and there may be information that you should cover that is not included in this template.This template is a guide only and your organisation may need to seek legal advice for its particular circumstances.

Template Auspicing Agreement

© 2018 Justice Connect. This information was last updated on 30 April 2018 and does not constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.

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Resource for community organisations


RELATED RESOURCESFor information on Auspicing see Not-for-profit Law’s Guide at www.nfplaw.org.au/auspicing.

http://www.nfplaw.org.au/auspicing

http://www.nfplaw.org.au/auspicing

Auspicing Agreement

TIPOnce you have inserted the details relevant to your organisations where indicated [bookended], remove the highlighting and these tip boxes.

This agreement is dated [Insert date]

Parties:

[Name of Auspicor] [Insert ACN or ABN as applicable] (Auspicor)of [Insert address]

[Name of Auspicee] [Insert ACN or ABN if applicable] (Auspicee)of [Insert address]

Introduction:

A The Auspicee has developed a project called “[Insert name]”.

B At the Auspicee’s request, the Auspicor has offered to auspice the Project in accordance with this agreement.

It is agreed:

1. Definitions and interpretation

1.1 Definitions

In this agreement, unless the context clearly indicates otherwise:

Address for Service means the address of each party appearing in clause 17.2 or any new address notified by any party to all other parties as its new Address for Service;

Auspicing Fee means [Insert fee, e.g. $[insert]; or x% of Donations raised].

Budget means the budget as described in Annexure B.

Business Day means any day that is not a Saturday, Sunday, gazetted public holiday or bank holiday in [Insert place], and concludes at 5 pm on that day;

Confidential Information means the terms of this agreement and all confidential information, material and technology disclosed or provided in any form by any Party to any other Party in connection with the subject matter of this agreement;

Corporations Act means the Corporations Act 2001 (Cth);



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NOTEThis clause provides the definitions of some terms used in the Agreement and also sets out some rules for interpreting the agreement.

Donations means grants, donations, sponsorships, or other funds provided by a Funding Body;

DGR means deductible gift recipient.

GST means any form of goods and services tax payable under the GST Law;

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Funding Body means a giver of a grant, donations, sponsorships or other funds;

Implementation Plan means the implementation plan in Annexure A, describing the Parties’ respective responsibilities to perform this agreement in compliance with the Budget.

Intellectual Property Rights means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including, without limitation, business, company or trade names, domain names, patentable or patented material, whether registered or unregistered, computer software, goods, and images, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration and its materials, including copyright of documentation, data, records, and information, including confidential information, stored by any means (whether as originals or copies), whether created before, during the operation of this agreement, or after its expiry or termination.

Notice has the meaning given to that term in clause 17.1;

Project means the “[Insert name]” project. The Project [insert brief description].

1.2 Interpretation

In this agreement, unless the context clearly indicates otherwise:

(a) a reference to this agreement or another document means this agreement or that other document and any document which varies, supplements, replaces, assigns or novates this agreement or that other document;

(b) a reference to legislation or a legislative provision includes any statutory modification or substitution of that legislation or legislative provision and any subordinate legislation issued under that legislation or legislative provision;

(c) the introduction and annexures form part of this agreement;

(d) a reference to a person includes a natural person, corporation, statutory corporation, partnership, the Crown or any other organisation or legal entity;

(e) a reference to a natural person includes their personal representatives, successors and permitted assigns;

(f) a reference to a corporation includes its successors and permitted assigns;

(g) an obligation or warranty on the part of 2 or more persons binds them jointly and severally and an obligation or warranty in favour of 2 or more persons benefits them jointly and severally;



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(h) a reference to a breach of warranty includes that warranty not being complete, true or accurate;

(i) a requirement to do anything includes a requirement to cause that thing to be done and a requirement not to do anything includes a requirement to prevent that thing being done;

(j) including and includes are not words of limitation;

(k) the words at any time mean at any time and from time to time;

(l) a reference to a time is to that time in the place where the agreement was executed;

(m) a word that is derived from a defined word has a corresponding meaning;

(n) monetary amounts are expressed in Australian dollars unless expressly stated otherwise;

(o) the singular includes the plural and vice-versa;

(p) words importing one gender include all other genders; and

(q) a reference to a thing includes each part of that thing.

1.3 Construction

Neither this agreement nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting.

2. Term of the agreement

2.1 This agreement begins on [Insert e.g. date of execution or a fixed date] and continues until [Insert length, or fixed date] or until it is otherwise terminated in accordance with this agreement, whichever comes first (Term).

2.2 The Parties may vary the Term of the agreement by written consent.

3. The Project

3.1 Details of the Project’s Implementation Plan and Budget are provided in Annexure A and Annexure B respectively.

3.2 The parties agree to carry out their responsibilities for the Project as specified in the Implementation Plan and to comply with the Budget in doing so.

4. Raising of funds Template Auspicing Agreement


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NOTEThis clause provides for when the Agreement will start and when it is agreed it will finish.It also sets out that if the parties would like to change when it will start and finish, they must both agree in writing.

NOTEThis clause sets out the various responsibilities in relation to securing funding. Generally, it will be the responsibility of the Auspicee to secure funding. However, the Auspisor agrees to work with the Auspicee to complete any grant applications. This is important, because it may be the Auspicor who has the necessary information to complete the funding application”.

4.1 The Auspicee is responsible to secure Donations to provide funding for the Project costs as listed in the Budget.

4.2 The Auspicor is responsible for all administrative and regulatory requirements of those Donations. Except as set out in this agreement, the Auspicor will not otherwise assist the Auspicee whether financially or otherwise to secure Donations.

4.3 The Auspicor agrees to be the named applicant on any grant applications to Funding Bodies. The Parties agree to work co-operatively on the submission of any grant applications to Funding Bodies listed in the Budget in the manner specified in the Implementation Plan.

5. Financial administration

5.1 The Auspicor agrees to establish and provide the Auspicee with details of a separate bank account to receive all Donations.

5.2 The Auspicor agrees to receive and hold all Donations received in the bank account established under clause 5.1 for the financial accountability and administration of the Project, and to distribute and apply Donations for and in accordance with this agreement and its implementation by the parties.

5.3 The Auspicor agrees to distribute and apply Donations [less the Auspicing Fee]:

(a) to the Auspicee, on the production of accounts and receipts for reasonably incurred costs within the scope of the Budget;

(b) in direct payment of third party tax invoices provided by the Auspicee for reasonably incurred costs which are within the scope of the Budget; or

(c) as otherwise agreed by the parties. For example, if at the conclusion of the Project there are surplus funds available, the parties may, subject to compliance with administrative and regulatory requirements, agree to [Insert surplus funds arrangements].

5.4 The Auspicor will not charge a fee to the Auspicee for providing complying with its obligations under this agreement.

[or – strike out the clause you will not use]



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NOTEThis discusses how the funds will be received by the Auspicor and distributed to the Auspicee.

TIPIf you include this clause (which says there will be no fee), then remove references to the fee in clauses 1.1, 5.3, 12.3(c) and 12.4

In consideration for performance of the obligations of the Auspicor under this agreement, the Auspicee agrees that the Auspicor may deduct the Auspicing Fee, payable on [Insert timeframe].

5.5 The parties agree to comply with, and enable the compliance of, all financial accountability requirements of Funding Bodies in respect of Donations secured pursuant to this agreement.

5.6 The Auspice acknowledges and agrees that the Auspicor is not liable for any deficit in funds not received from any Funding Body, or for expenditure beyond the Budget that has been incurred whether or not for the benefit of the Project.

5.7 For [Insert] months after the termination or expiration of this agreement, the Auspicee must permit access to its accounts and records, relating wholly or in part to this agreement, and to any of its offices or buildings where that information may be held, to the Auspicor and its duly authorised agents and employees, for the purpose of verifying compliance with this Agreement and to take copies of all such information.

6. Obligations of Auspicor

The Auspicor will:

6.1 At all times work in the best interest of the Auspicee in relation to the Project;

6.2 Will not conduct business in any way in which would damage the Auspicee’s public image or reputation;

6.3 Be the applicant in all applications for grant funding, contract directly with Funding Bodies for the receipt of grant funding, and comply with all grant funding contractual obligations, including the provision of progress reports, final reports and financial acquittal documentation;

6.4 Be the entity that will accept all grant funding and other sources of funding for the Project and administer the funding in accordance with this agreement;

6.5 Where applicable and subject to applicable laws, issue tax deductible receipts to Funding Bodies in respect of Donations;

6.6 Disburse sources of funds to the Auspicee in accordance with this agreement and not unreasonably withhold funding from the Auspicee for the implementation of this agreement;



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NOTEGiven that the Auspicor is ultimately responsible to the Funding Bodies for the use of the Donations, it is important that the Auspicor has access to records and accounts that provide evidence about how the Donations were used.

CAUTIONBoth parties should carefully review the obligations placed upon it as well as the other party

6.7 Provide the Auspicee with an itemised financial statement on expiry or termination of the agreement which clearly identifies how sources of funds were spent;

6.8 Contribute to implementation of the agreement as specified in the Implementation Plan;

6.9 Not alter the Implementation Plan or Budget without the written consent of the Auspicee;

6.10 Not represent in any manner that they are an agent for the Auspicee or that they have the capacity to bind the Auspicee in any respect; and

6.11 To keep detailed records in respect of matters arising out of this agreement including receipts and invoices.

7. Obligations of Auspicee

The Auspicee will:

7.1 At all times work in the best interests of the Auspicor in relation to the Project;

7.2 Will not conduct business in any way in which would damage the Auspicor’s public image or reputation;

7.3 Not deal directly with grant funding bodies for the receipt of grant funding for the Project;

7.4 Provide sufficient information and take all reasonable steps to enable the Auspicor to comply with all grant funding contractual obligations, including the provision of progress reports, final reports and financial acquittal documentation;

7.5 Accept grant funding and other sources of funds from the Auspicor in accordance with this agreement and provide accounts and receipts for all expenditure on at least a fortnightly basis for financial accountability of the Project and the generation of accurate itemised financial statements regarding Project expenditure and acquittal documentation;

7.6 Arrange adequate insurance as set out in clause 8;

7.7 Not use Donations for reasons other than the items stated in the Budget in Annexure B;

7.8 Secure all Donations from Funding Bodies without any assistance from the Auspicor, both financially and non-financially, except as otherwise set out in this agreement;

7.9 Inform the Auspicor immediately should the Auspicee secure Donation approval or should such approval be modified or withdrawn, including any detail requested by the Auspicor;

7.10 Take all available steps to secure alternate funding where necessary, including but not limited to third party loans, to ensure that sufficient funds are raised for the purposes of this agreement;



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7.11 Provide fortnightly progress reports, final reports and financial acquittal documentation, all in a form reasonably required by the Auspicor;

7.12 Provide tax invoices, accounts and receipts for all expenditure on at least [insert.i.e. fortnightly basis] and upon receiving new Donation approvals, for financial accountability of the agreement and the generation of accurate itemised financial statements regarding expenditure and acquittal documentation;

7.13 Not seek petty cash disbursements from the Auspicor in excess of [$ insert] at any one time;

7.14 Contribute to implementation of the agreement as specified in the Implementation Plan in a professional and business-like manner, including:

(a) taking all reasonable steps to secure Donations; and

(b) drafting material and content for the Project and promoting the message of the Auspicor.

7.15 Inform the Auspicor in writing of any proposed changes to the Project, its Implementation Plan or Budget in a timely manner and not alter the Project, the Implementation Plan or Budget without the prior written consent of the Auspicor;

7.16 In a timely manner inform the Auspicor if it does not have the capacity to undertake the Project, this agreement or Implementation Plan activities at any time;

7.17 Not represent in any manner that they are an agent for the Auspicor or that they have the capacity to bind the Auspicor in any respect; and

7.18 To keep detailed records in respect of matters arising out of this agreement including receipts and invoices.

8. Liability and insurance

8.1 To the extent permitted by law the Auspicor has no liability to the Auspicee or any third party including, but not limited to, direct, indirect or consequential losses, liabilities, costs, charges, expenses, actions, proceedings, claims and demands, fines and damages, and/or interest in the event of any failure, inaction, loss, cost, expense, liability, damage or claim from or arising out of the Project, its implementation, or this agreement.

8.2 It is the responsibility of [Insert party] to ensure that it has all necessary, current and adequate insurance policies in place, including with respect to [Insert category(ies)], and insurances to cover the Project and protect all assets and equipment to be used in respect of the Project.

8.3 [Insert party] must seek the approval of [Insert party] in respect of each insurance and provide to [Insert party] valid certificates of currency for each policy on or before commencement of the Term. [Insert party] accepts liability



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CAUTIONBoth parties should carefully review the obligations placed upon it as well as the other party

RELATED RESOURCES

If you need some further information on Insurance see Not-for-profit Law’s Guide to Insurance and Risk Management for community organisations at www.nfplaw.org.au/insurance.

http://www.nfplaw.org.au/insurance

for any premiums or excess to be paid in relation to any of the insurance policies specified in this agreement.

9. Intellectual Property

9.1 The Auspicor retains ownership of all Intellectual Property Rights in its materials which were in existence at the date of execution of this agreement or which were or are developed independently of this agreement (Auspicor Background IP). Subject to the Auspicee complying with its obligations under this agreement, the Auspicor grants the Auspicee a limited, non-exclusive, royalty-free licence during the Term to use the Auspicor Background IP solely for the purpose and to the extent necessary to perform this agreement.

9.2 The Auspicee retains ownership of all Intellectual Property Rights in its materials which were in existence at the date of execution of this agreement or which were or are developed independently of this agreement (Auspicee Background IP). The Auspicee grants the Auspicor a limited, non-exclusive, royalty-free licence to use the Auspicee Background IP solely for the purpose and to the extent necessary to perform this agreement.

9.3 Subject to clause 9.4, all Intellectual Property Rights in any material created specifically as part of this agreement vest in [Insert party] (Project IP). [Insert party] grants [Insert party] a non-exclusive, royalty free, irrevocable, transferable licence to use the Project IP solely for the purpose and to the extent necessary to perform this agreement.

9.4 The parties warrant that anything done by the parties, including the actions of their employees, contractors or agents, will not infringe the Intellectual Property Rights of any person or breach the privacy of persons, families or organisations participating in the Project.

9.5 Any agreed use of the name, logo or other Intellectual Property Rights of the Parties, including such property licensed to the Parties, must be in a manner and on terms that a Party may not damage the other Party’s reputation.

10. Confidential Information



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NOTEThese clauses mean that each party retains their IP rights over property that they have prior to entering into the agreement, and over any property developed after entering into the agreement, but which is not related to the Project. However, each party will allow the other to use their IP during the term of the agreement, if the use of that IP is necessary to perform the agreement. For example, the auspicee will be able to use the logo of the auspicor to show that the program is being run under the auspices of the auspicor. Importantly, under clause 9.5, IP rights cannot be used by the other party in a way that would damage the other party’s reputation.

NOTEThe parties must decide who will own any IP that is created as part of the Project.

RELATED RESOURCES

For more information on IP and auspicing see Not-for-profit Law’s Auspicing Guide at www.nfplaw.org.au/auspicing (which explains “Background IP” and “Project IP”) or the Intellectual Property Guide at www.nfplaw.org.au/ip

FURTHER READINGConfidential information is information that is confidential or secret to an organisation or person. To be considered ‘confidential’, information must not be available in the public domain. Protection of confidential information lasts for as long as the information stays confidential. However, once confidential information has been disclosed (ie. made public) it will no longer be confidential and cannot be confidential again. For more information see Part 6 of Not-for-profit Law’s Intellectual Property Guide at www.nfplaw.org.au/ip.

http://www.nfplaw.org.au/ip

10.1 Subject to this clause, each Party must maintain in confidence all Confidential Information and ensure that the Confidential Information is kept confidential.

10.2 Each Party will respect the confidentiality of the other Party, their operations and administration of this agreement, will keep the terms of this agreement confidential, and make all reasonable effort to guard the reputation and good name of the other Party.

10.3 A Party (Beneficiary) may reveal Confidential Information of another Party (Provider):

(a) if required by law, in which case the Beneficiary must immediately notify the Provider of the requirement and must take lawful steps and permit the Provider to oppose or restrict the disclosure to preserve, as far as possible, the confidentiality of the Confidential Information;

(b) if the Confidential Information is in or enters the public domain for reasons other than a breach of this agreement;

(c) if the Confidential Information is disclosed to the Beneficiary by a third Party legally entitled to disclose that information and who is not under an obligation of confidentiality to the Provider; or

(d) to its professional advisers to obtain professional advice, on a confidential basis.

11. Acknowledgement and public relations

11.1 The Auspicee must acknowledge the assistance of the Auspicor and its involvement in any publication, presentation, website, media or display material or any announcements or interviews referring to the Project in a manner that is acceptable to the

Auspicor.

11.2 The Auspicee must disclose to the Auspicor all circumstances in which such acknowledgement is intended and the manner in which it is to be achieved. The Auspicee must submit this information to the Auspicor in writing, including final drafts of any intended acknowledgement, for the review and approval of the Auspicor.

11.3 At least [Insert] days’ notice must be given for such review and approval before publishing any website, marketing material, including any promotional footage or trailers, or other media, presentation or display materials containing an acknowledgement.

11.4 The Parties agree for the exchange of information, as may be considered appropriate by the Parties during the implementation of the Project, and within [Insert] months of its conclusion, to enable accurate reference to the Project for the issue of joint media releases and other (including internet) communications and the holding of joint events, as may be agreed by the Parties from time to time, to promote the Project and the promotion of Project outcomes and the Auspicor’s objectives.



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NOTEThis clause provides for how both the auspicee and the auspicor will be recognised in relation to the funded project (including promotion, branding and acknowledgements) and the process (including provision of draft materials and time for review and approval).

12. Termination and non-completion of the Project

12.1 The Auspicee may terminate the agreement in the following circumstances:

(a) By notice in writing to the Auspicor if the Auspicor is more than [Insert time] late in making payments under clause 5.3.

(b) If the Auspicor is in material breach of any of its obligations under this agreement. Where the breach can be remedied, the Auspicee must give written notice of the breach to the Auspicor who will have [Insert time], or such other time as agreed by the Auspicee and the Auspicor in writing, within which to remedy the breach.

12.2 The Auspicor may terminate the agreement [or withhold payments or reimbursements] in the following circumstances:

(a) If the Auspicee is in material breach of any of its obligations under this agreement. Where the breach can be remedied, the Auspicor must give written notifice of the breach to the Auspicee who will have [Insert time] or such other time as agreed by the Auspicor and the Auspicee in writing, within which to remedy the breach; or

(b) By notice in writing to the Auspicee if in the reasonable opinion of the Auspicor the Auspicee is not in a position to complete the Project; or

(c) If a grant funding agreement is terminated or if grant funds are withheld by a Funding Body.

12.3 The consequences of termination, withholding of payment or non-completion by a party are as follows:

(a) all communications by the Auspicee to actual or potential Funding Bodies are to stop immediately;

(b) all outstanding invoices arising out of this agreement must be paid; and

(c) refunds of Donations by either party will be determined by the terms of the agreement (if any) with the Funding Body. If the agreement places no requirement on either the Auspicor or the Auspicee to refund a Donation, the Auspicor may in its discretion pay all remaining monies in its control less the Auspicing Fee, to the Auspicee in accordance with the terms of this agreement or utilise the funds itself to complete the Project independently without reference to, or involvement of, the Auspicee;

12.4 Nothing in this agreement prejudices the right of the Auspicor to deduct the Auspicing Fee from funds in its possession.

13. GST



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CAUTIONBecause an auspice agreement is a legally binding contract, you need to document when it can be brought to an end. Usually agreements are able to be terminated early if one party fails to fulfil its obligations or otherwise breaches the agreement and is not in a position to remedy this. This clause makes clear the circumstances when the Auspicee can terminate the agreement and also when the Auspicor can.

RELATED RESOURCESFor more information on GST, including what it is, if your organisation has to register and or is eligible for concessions see www.nfplaw.org.au/GST which also provides links to the Australian Taxation Office.

http://www.nfplaw.org.au/GST

13.1 Definitions

Words used in this clause that are defined in the GST Law have the meaning given in that legislation.

13.2 Consideration is GST-exclusive

Unless otherwise specified, all amounts payable under this agreement are exclusive of GST and must be calculated without regard to GST.

13.3 GST payable on taxable supply

(a) If a supply made under this agreement is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply.

(b) The Recipient will only be required to pay an amount of GST to the Supplier if and when the Supplier provides a valid tax invoice to the Recipient in respect of the taxable supply.

(c) If there is an adjustment to a taxable supply made under this agreement then the Supplier must provide an adjustment note to the Recipient.

(d) The amount of a party’s entitlement under this agreement to recovery or compensation for any of its costs, expenses or liabilities is reduced by the input tax credits to which that Party is entitled in respect of those costs, expenses or liabilities.

14. Survival of clauses

14.1 Clauses [1, 9, 10, 11, 12, 13, 14, 18 and 19], and any other clauses which by their nature survive, survive the termination or expiry of this agreement.

15. Assignment

This agreement is personal to each party and neither party may assign the rights or benefits of this agreement or sub-contract any obligations to any other person except by the written agreement of both Parties.

16. Warranties

16.1 General warranties

Each party warrants to each other party that:

(a) this agreement creates legal, valid and binding obligations, enforceable against the relevant party in accordance with its terms;

(b) unless otherwise stated, it has not entered into this agreement in the capacity of trustee of any trust;



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CAUTIONIf a warranty made by a party later becomes untrue or inaccurate then that party may be in breach of the agreement.

(c) they will comply with the law in discharging their obligations under this agreement for the effective administration and implementation of the Project; and

(d) that each has the necessary qualifications, skills, expertise and experience to achieve the Implementation Plan and to do so in compliance with the Budget.

16.2 The Auspicor warrants that it [insert Auspicor status as applicable – e.g. is endorsed as a deductible gift recipient/describe tax concession status] and will maintain such status at all relevant times during the Term.

17. Notices

17.1 Notices

Any notice, demand, consent, approval, request or other communication to be given under this agreement (Notice) must be in writing and, unless this agreement provides otherwise, in English.

17.2 Address for service

The Address for Service of each Party is:

Name: [INSERT]Address: [INSERT]Attention: [INSERT]

Name: [INSERT]Address: [INSERT]Attention: [INSERT}

17.3 Service of Notices

(a) A Notice must be given at the recipient’s Address for Service by being:

(i) hand delivered;

(ii) sent by facsimile;

(iii) sent by prepaid mail within Australia;

(iv) sent by prepaid Express Post International (or overseas equivalent) airmail if the sender and the recipient are in different countries; or

(v) sent by email.

(b) A Notice is given if:

(i) hand delivered, on the date of delivery;

(ii) sent by facsimile and the sending Party’s facsimile machine reports that the facsimile has been successfully transmitted:



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TIPIt is important to make sure these are correct so each party knows where to deliver notices to for the purpose of the agreement. If you change address you should notify the other party. You might also want to include email addresses.

(A) before 5 pm on a Business Day, on that Day;

(B) after 5 pm on a Business Day, on the next Business Day after it is sent; or

(C) on a day that is not a Business Day, on the next Business Day after it is sent,

(iii) sent by prepaid mail within Australia, on the date that is 2 Business Days after the date of posting;

(iv) sent by prepaid Express Post International (or overseas equivalent) airmail between countries, on the date that is 10 Business Days after the date of posting; or

(v) sent by email, on the date that the email is sent, unless the sender receives a receipt showing the email was not deliverable.

18. Dispute resolution

18.1 If a Party considers that a dispute exists in connection with the agreement, that Party must give the other Party a written notice detailing the nature of the dispute (Dispute Notice).

18.2 Within 14 days after service of a Dispute Notice, the nominated representatives of the Parties must confer at least once and attempt to resolve the dispute in good faith. Failing such resolution within 14 days of that conference, either Party may commence mediation to resolve the dispute by serving notice on the other Party and referring the matter to [Insert] for mediation.

18.3 If a dispute has not been settled by mediation within 60 days after the mediation commences, either Party may discontinue the mediation and, subject to any other terms of this agreement, commence legal proceedings.

18.4 Nothing in this agreement prejudices the right of a Party to institute legal proceedings against or involving the other Party to seek urgent injunctive or declaratory relief in relation to any matter arising under this agreement.

19. General provisions

19.1 Language

All communications between the Parties must be in English and if, for any reason, this agreement is required to be translated into any other language, the English language version prevails.

19.2 Entire agreement

This agreement constitutes the entire agreement between the Parties regarding the matters set out in it and supersedes any prior representations, understandings or arrangements made between the Parties, whether orally or in writing.



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RELATED RESOURCESInformation on mediation services across Australia is in Not-for-profit Law’s fact sheet “Using mediation to resolve conflict and disputes” at www.nfplaw.org.au/mediation

http://www.nfplaw.org.au/mediation

http://www.nfplaw.org.au/mediation

19.3 Variation

This agreement must not be varied except by a later written document executed by all Parties.

19.4 Waiver

A right created by this agreement cannot be waived except in writing signed by the Party entitled to that right. Delay by a Party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a Party of a right operate as a subsequent waiver of the same right or of any other right of that Party.

19.5 Further assurances

Each Party must promptly execute all documents and do everything necessary or desirable to give full effect to the arrangements contained in this agreement.

19.6 Time for doing acts

(a) If:i. the time for doing any act or thing required to be done; orii. a notice period specified in this agreement,

(b) expires on a day other than a Business Day, the time for doing that act or thing or the expiration of that notice period is extended until the following Business Day.

(c) If any act or thing required to be done is done after 5 pm on the specified day, it is taken to have been done on the following Business Day.

19.7 Governing law and jurisdiction

(a) The laws applicable in the place where the agreement was executed govern this agreement.

(b) The Parties submit to the non-exclusive jurisdiction of the courts of the place where the agreement was executed and any courts competent to hear appeals from those courts.

19.8 Severance

If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

19.9 Preservation of existing rights

The expiration or termination of this agreement does not affect any right that has accrued to a Party before the expiration or termination date.

19.10 No merger



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Any right or obligation of any Party that is expressed to operate or have effect on or after the completion, expiration or termination of this agreement for any reason, will not merge on the occurrence of that event but will remain in full force and effect.

19.11 Counterparts

(a) This agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument.

(b) A Party who has executed a counterpart of this deed may deliver it to, or exchange it with, another Party, including by faxing, or transmitting by electronic mail or by other electronic means, a copy of the executed counterpart, to such other Party.

19.12 Relationship of Parties

Unless otherwise stated:

(a) nothing in this agreement creates a joint venture, partnership, or the relationship of principal and agent, or employee and employer between the Parties; and

(b) no Party has the authority to bind any other Party by any representation, declaration or admission, or to make any contract or commitment on behalf of any other Party or to pledge any other Party’s credit.

19.13 Legal expenses

The [Insert party] will bear the legal costs and disbursements in connection with the negotiation, preparation, execution and carrying into effect of this agreement.

19.14 Tax and stamp duty

The [Insert party] will bear any tax and stamp duty in connection with this agreement.

Executed as an agreement.

CAUTIONIt is essential the agreement is executed properly so that it creates a legally binding agreement that is enforceale. You should check the relevant law (for example, if you are a company limited by guarantee you must execute the agreement in accordance with the Corporations Act and provisions in your company’s constitution. It is common practice for CLGs to execute by two directors, or one director and the secretary, and incorporated associations to execute by two members of the committee, or one member of the committee and the secretary. Also note that some parties may ask for evidence that the person signing has authority to do so, such as by requiring identification and evidence that a relevant position is held.



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Signed for [Insert party] by its authorised representative in the presence of:

Signature of witness Signature of authorised representative

Name of witness Name of authorised representative

DATE: Title of authorised representative

Signed for [Insert party] by its authorised representative in the presence of:

Signature of witness Signature of authorised representative

Name of witness Name of authorised representative

DATE: Title of authorised representative

Annexure A - Implementation PlanMilestones Key

Peformance Indicator

Start Date Completion Date

Responsibility for

Implementation



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Annexure B – Budget

Budget Item Expenditure Income

TOTAL

Clause in the Agreement

Checklist – insert into the Auspice Agreement

Date the agreement is madeName, Address (and ABN or ACN, if applicable) of Auspicor and Auspicee

Introduction The name of the project

Definitions(Clause 1)

Auspicing fee (e.g. an amount or a percentage)Business day: the place (for example, if two organisations based in



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Victoria are the parties to the agree then it would be sensible to nominate VictoriaProject name and a brief description of the project

Term (Clause 2)

Term: When the agreement will start and when it will finish

The Project (Clause 3)

Implementation Plan (Annexure A)Budget (Annexure B)

Financial (Clause 5)

Surplus funds arrangementsCharge of an Auspicing Fee (for example, charge a fee or not). Strike out the clause that is not relevant and make necessary changes to other clauses (see the Tip box)Time (the number of months after the end of agreement in which to access records)

Obligations of Auspicee (Clause 7)

Time (how often that tax invoices, accounts and receipts will be provided)Amount (in relation to petty cash disbursements)

Insurance and Liability(Clause 8)

Name of party that has responsibility for insurance Categories of insurancesName of party in relation to insurance approvals and documentation

Intellectual Property(Clause 9)

Name of party that will own Intellectual Property (IP) created as part of the project and the arrangements for the other party to use the IP

Acknowledgement Public Relations (Clause 11)

The number of days in which a party has to review any material that may be publishedThe number of months after the project has concluded to consider joint communications

Termination (Clause 12)

Time (in relation to making of late payments)Time (amount of time to remedy a breach of the agreement)Terminate the agreement or withhold payments (in certain circumstances)Time (amount of time in which to remedy a breach of the agreement)

Warranty (Clause 16)

Status of Auspicor (for example, DGR endorsement)

Dispute Resolution (Clause 18)

Body (for example, Dispute Settlement Centre Victoria) where disputes will be referred to for mediation

General Provisions (Clause 19)

Party (that will be responsible for legal costs in relation to the agreement)Party (that will be responsible for any tax in relation to the agreement)

Execution Party, Name of Authorised representative, Name of Witness and Date



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€¦ · web viewbecause an auspice agreement is a legally binding contract, ... it is essential...

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