monetary references are references to australian...

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GRANT AGREEMENTTARGET MINERALS EXPLORATION INITIATIVE

[licence number]

THE STATE OF VICTORIAas represented by itsDEPARTMENT ECONOMIC DEVELOPMENT, JOBS, TRANSPORT AND RESOURCES

AND

[company name]

TABLE OF CONTENTS

BACKGROUND..........................................................................................................................................5

1. INTERPRETATION........................................................................................................................5

1.1 Definitions...........................................................................................................................5

1.2 Interpretation......................................................................................................................8

2. TERM...............................................................................................................................................9

3. CONDITIONS PRECEDENT........................................................................................................9

3.1 Conditions precedent........................................................................................................9

3.2 Failure to comply with conditions precedent.................................................................9

3.3 Waiver of Conditions Precedent......................................................................................9

4. RECIPIENT’S LICENCE.............................................................................................................10

5. PROJECT......................................................................................................................................10

5.1 Management of Project..................................................................................................10

5.2 Demonstration of ability to Complete...........................................................................11

5.3 Commencement and Completion of Project...............................................................11

5.4 Variation to Project..........................................................................................................11

6. REPORTING AND REVIEW......................................................................................................12

6.1 Provision of Reports........................................................................................................12

6.2 Form of Reports...............................................................................................................12

6.3 Approval of Milestone Reports......................................................................................12

6.4 Approval of Final Milestone Report..............................................................................12

7. FUNDING......................................................................................................................................13

7.1 Payment of Funding........................................................................................................13

7.2 Determination of Actual Grant.......................................................................................13

7.3 Submission of Tax Invoice.............................................................................................13

8. DATES FOR COMPLIANCE......................................................................................................13

9. OBLIGATIONS OF RECIPIENT................................................................................................13

10. WARRANTIES..............................................................................................................................14

11. INTELLECTUAL PROPERTY...................................................................................................14

11.1 Grant of licence................................................................................................................14

11.2 Recipient warranty and indemnity.................................................................................14

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12. RECORDS.....................................................................................................................................15

13. INFORMATION............................................................................................................................15

13.1 Confidential information..................................................................................................15

13.2 Publicity.............................................................................................................................15

14. INSURANCE.................................................................................................................................16

15. INDEMNITY...................................................................................................................................16

16. CONFLICT OF INTEREST.........................................................................................................17

17. CHANGE OF CIRCUMSTANCES............................................................................................17

18. TERMINATION.............................................................................................................................17

19. DISPUTE RESOLUTION............................................................................................................18

20. AUDIT AND PERFORMANCE REVIEW.................................................................................18

21. ASSIGNMENT..............................................................................................................................19

22. COSTS AND STAMP DUTY......................................................................................................19

23. GST................................................................................................................................................19

24. GENERAL.....................................................................................................................................19

24.1 Notices...............................................................................................................................19

24.2 Relationship between the parties..................................................................................20

24.3 Amendments or variations in writing............................................................................20

24.4 Counterparts.....................................................................................................................20

24.5 No merger.........................................................................................................................20

24.6 Entire Agreement.............................................................................................................21

24.7 Inconsistency....................................................................................................................21

24.8 Further assurances.........................................................................................................21

24.9 No waiver..........................................................................................................................21

24.10 Governing law and jurisdiction......................................................................................21

24.11 Severability.......................................................................................................................21

24.12 Equal Opportunity, Anti-Discrimination and Privacy Laws........................................21

24.13 Survival..............................................................................................................................22

SCHEDULE 1 DETAILS OF AGREEMENT...................................................................................23

SCHEDULE 2 MILESTONES AND INDICATIVE GRANT...........................................................24

SCHEDULE 3 REPORTS..................................................................................................................25

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SCHEDULE 4 PROPOSAL.....................................................................................................................26

SCHEDULE 5 GUIDELINES...................................................................................................................27

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GRANT AGREEMENT – TARGET MINERALS EXPLORATION INITIATIVEMade on

BETWEEN THE STATE OF VICTORIA ACTING THROUGH THE DEPARTMENT OF ECONOMIC DEVELOPMENT, JOBS, TRANSPORT AND RESOURCES

(‘Department’)

AND [company name]

(‘Recipient’)

BACKGROUND

A. In 2014, the State of Victoria acting through the Department of Economic Development, Jobs, Transport and Resources (‘Department’) announced the TARGET Minerals Exploration Initiative (‘Initiative’) which is designed to increase investment in minerals exploration in Victoria.

B. The Recipient has applied for funding through the Initiative.

C. The Department has agreed to provide the Actual Grant to the Recipient on the terms and conditions set out below.

IT IS AGREED:

1. INTERPRETATION

1.1 DefinitionsIn this Agreement, except to the extent the context otherwise requires:

‘Actual Exploration Costs’ means the actual exploration costs incurred by the Recipient in relation to the delivery of each Milestone of the Project, as assessed by the Department in accordance with clause 7.1 and evidenced by the associated tax invoice(s);

‘Actual Grant’ means the actual amount of funding for the Project, excluding GST, to be paid in instalments which are to be determined in accordance with clause 7.2;

‘Business Day’ means a day other than a Saturday, Sunday or a public holiday in Victoria;

‘Commencement Date’ means the date this Agreement is executed by the Recipient;

‘Completion’, ‘Complete’, or ‘Completed’ means the completion of the Project in accordance with the requirements of this Agreement including Schedule 1;

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‘Completion Date’ means the date specified in Schedule 1, Item 6;

‘Confidential Information’ means all information and records of a party, in whatever form that:

(a) is by its nature confidential; or

(b) the receiving party knows or ought to know is confidential,

but does not include information that:

(c) becomes publicly available other than as a result of a breach of any obligation of confidence;

(d) is obtained by a party from a third party without breach by that third party of any obligation of confidence concerning that Confidential Information; or

(e) was already in a party’s possession (as evidenced by written records) when provided by or on behalf of the other party;

‘Confidentiality Period’ means a period of 3 months after the Final Milestone Report is approved by the Department, after the expiry of which period, the Proposal, Records and Reports may be publicly disclosed;

‘Consequential Loss’ means any consequential, indirect, exemplary or punitive damage (including but not limited to loss of actual or anticipated profits or revenues, loss by reason of shut down or non-operation, increased cost of borrowing, capital or financing or loss of use or productivity) whether caused by or in relation to breach of contract, warranty, tort, product liability or strict liability;

‘Demonstration Date’ means the date specified in Schedule 1, Item 5;

‘Department’ means the Department of the State named in the description of the Parties at the commencement of this Agreement and its successor and any reference to the Department shall be read and construed as a reference to the Crown in right of the State of Victoria;

‘Deliverables’ means the deliverables for each Milestone, as set out in Schedule 2;

‘Final Milestone Report’ means the report to be provided by the Recipient in accordance with clause 6.1(b) and containing the information as set out in Schedule 3;

‘Final Milestone Report Submission Date’ means the date specified in Schedule 1, Item 7;

‘Governmental Agency’ means any Commonwealth or State government department, authority, instrumentality or agency;

‘GST’ has the same meaning as in the GST Act;

‘GST Act’ means A New Tax System (Goods and Services Tax) Act 1999 as amended;

‘Guidelines’ means the TARGET Minerals Exploration Initiative Round Two Guidelines prepared by the Department for proposals seeking a grant under the Initiative, as amended from time to time by the Department;

‘Indicative Exploration Costs’ means the indicative exploration costs for the completion of each Milestone of the Project as set out in Schedule 2;

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‘Indicative Grant’ means the indicative amount of funding for the completion of each Milestone, excluding GST, as set out in instalments in Schedule 2;

‘Initiative’ means the TARGET Minerals Exploration Initiative described in paragraph A of the Background;

‘Insolvency Event’ means any of the following:

(a) there is a significant risk that the Recipient is or will be unable to pay its debts when they fall due;

(b) a significant deterioration in the financial circumstances of the Recipient;

(c) an order is made by a court of competent jurisdiction for the winding up or dissolution of the Recipient pursuant to the Corporations Act 2001 other than by reason of a bona fide restructure;

(d) a receiver, receiver and manager, trustee or similar officer is appointed over all or any of the assets or undertakings of the Recipient;

(e) a mortgagee takes possession either directly or by an agent over all or any of the assets or undertakings of the Recipient; or

(f) an administrator is appointed, a deed of company arrangement is entered into or the Recipient enters into any other composition or other arrangement with its creditors;

‘Intellectual Property’ includes business names, copyrights, and all rights in relation to inventions, patents, registered or unregistered trade marks (including service marks), registered designs, and semi-conductor and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

‘Law’ includes:

(a) Acts of the Commonwealth and the State of Victoria ;

(b) ordinances, regulations, by-laws, orders and proclamations or other instruments of legal effect made under those Acts;

(c) directions by any Governmental Agency exercising statutory powers regarding the Project; and

(d) approvals, licences, permits, registrations and consents from any person or Government body (federal, state or local) which by statute, regulation, by-law, ordinance, order or proclamation has jurisdiction over the Project;

‘Licence’ means an exploration licence, a mining licence, a prospecting licence or a retention licence issued to the Recipient under the MRSDA that relates to the Project as set out in Schedule 1, Item 2;

‘Milestone’ means each of the milestones for delivery of the Project, as set out in Schedule 2;

‘Milestone Deliverable Date’ means the dates for achieving each of the Milestones, as set out in Schedule 2;

‘Milestone Report’ means the Milestone Report and Final Milestone Report to be provided by the Recipient in accordance with clause 6.1(a) and clause 6.1(b) and containing the information as set out in Schedule 3;

“MRSDA” means the Mineral Resources (Sustainable Development) Act 1990 (Vic);

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‘Person’ includes individuals, firms, partnerships, bodies corporate, associations and governments and governmental, semi-governmental and local authorities and agencies;

‘Project’ means the exploration activities in the Recipient’s Proposal identified in Schedule 4;

‘Project Completion Date’ means the actual date that the Project is Completed;

‘Proposal’ means the proposal (which includes the TARGET Round 2 Proposal Form) lodged by the Recipient, in accordance with the Guidelines, a copy of which is at Schedule 5;

‘Recipient’ means the party whose details are set out in Schedule 1, Item 1 under the heading “Recipient”;

‘Recipient’s Nominated Representative’ means the person nominated by the Recipient and advised to the Department in writing for the purposes of clause 5.4(a);

‘Records’ has the meaning given in clause 12(a);

‘Supply’ has the same meaning as in the GST Act;

‘Tax Invoice’ means a tax invoice which complies with the GST Act and are provided to the Department under clause 7.3;

‘Taxable Supply’ has the same meaning as in the GST Act;

‘Term’ has the meaning given in clause 2;

‘Value’ has the same meaning as in the GST Act; and

‘Victorian Government’ means the government of the State of Victoria.

1.2 InterpretationIn this Agreement, except to the extent the context otherwise requires:

(a) monetary references are references to Australian currency;

(b) the singular includes the plural and vice versa and a gender includes other genders;

(c) a reference to a party is to be construed as a reference to a party to this Agreement;

(d) a reference to a party to this Agreement or any other document or agreement includes its executors, administrators, successors and permitted assigns;

(e) a reference to an item in the Background, clause, schedule, annexure or appendix is a reference to an item in the Background, clause of or schedule, annexure or appendix to this Agreement and references to this Agreement include its Schedules;

(f) where a word or phrase is given a particular meaning, other parts of speech or grammatical forms of that word or phrase have corresponding meanings;

(g) a reference to a document or agreement including this Agreement includes a reference to that document or agreement as amended, supplemented or varied from time to time;

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(h) if the Recipient consists of more than one person those persons shall be jointly and severally bound under this Agreement;

(i) a reference to the Department includes any duly authorised officer or agent and its successor Government department and all references to the Department will be read and construed as references to the State of Victoria; and

(j) in the interpretation of this Agreement, headings are to be disregarded.

2. TERM

The Term commences on the Commencement Date and, unless terminated earlier in accordance with clause 18, terminates on the day after the Department pays the final instalment of the Actual Grant to the Recipient.

3. CONDITIONS PRECEDENT

3.1 Conditions precedentThis Agreement, other than this clause 3 and clauses 1, 13, 16, 19, and 24, has no effect unless the following conditions precedent are fulfilled by the Recipient, or waived by the Department in accordance with clause 3.3.

(a) The Recipient has provided written evidence satisfactory to the Department that it has, or will meet its existing Licence expenditure commitments.

(b) The Recipient has submitted all technical and partial relinquishment reports relating to its existing Licence and these reports have been approved by the Department.

3.2 Failure to comply with conditions precedentShould the Recipient fail to satisfy the conditions precedent specified in:

(a) clause 3.1(a); or

(b) clause 3.1(b),

by the commencement of the Project then:

(c) this Agreement will automatically terminate unless the parties agree otherwise in writing; and

(d) the Recipient shall have no claim to any of the Actual Grant or Indicative Grant provided for under this Agreement.

3.3 Waiver of Conditions PrecedentThe conditions precedent in clause 3.1 may only be waived in writing by the Department.

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4. RECIPIENT’S LICENCE

4.1 This clause 4 shall only apply if the Recipient’s Licence is:(i) pending renewal; or(ii) an exploration licence or a prospecting licence and the Recipient is

awaiting a decision from the Minister for Resources under section 16A of the MRSDA as to whether the Recipient will be granted either a mining licence or a retention licence.

4.2 If the Recipient’s Licence is:

(a) not renewed; or

(b) an exploration licence or a prospecting licence and the Recipient is not granted either a mining licence or a retention licence,

then this Agreement may be terminated by the Department in accordance with clause 18 as though the failure by the Recipient to have its Licence renewed, or be granted a mining licence or a retention licence, is a breach that cannot be rectified.

5. PROJECT

5.1 Management of Project(a) The Recipient (or its nominee, if appropriate) will be responsible for:

(i) the management of the Project; (ii) all costs required for the Completion of the Project; and(iii) any and all liabilities and obligations associated with the

Project, including its obligations under this Agreement.

(b) The Recipient acknowledges and agrees that the Project will be in addition to the activities the Recipient is currently required to undertake as specified in its Licence.

(c) The Recipient acknowledges and agrees that the Department has no obligations in relation to the Project other than to pay the Actual Grant in accordance with clause 7.2 and that the funding or any other support given to the Recipient by the Department under this Agreement will not affect any obligation the Recipient has in relation to the Licence whether pursuant to the MRSDA or otherwise.

(d) In undertaking the Project the Recipient agrees that it will interact with landholders and other community members in an open, inclusive, informative, respectful and responsive manner throughout the duration of the Project by:(i) liaising closely with land holders upon whose land they propose

to undertake exploration activities, in order to:(A) identify mutually agreed ways to minimise interference

with the landholder's activities on the land; and(B) provide factual information in a form that can be readily

interpreted by the landholders about the Recipient's exploration program, exploration techniques, site rehabilitation, exploration data and interpretation and

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any ancillary information that can be drawn from the exploration data for the landholder's potential benefit such as information about soil chemistry, water chemistry and groundwater aquifers;

(ii) maintaining in good condition and repair all structures, equipment and property used in connection with the Project on the landholders property and adjoining public roads;

(iii) engaging with landholders whose land adjoins a property upon which the Recipient is undertaking the Project in order to provide any ancillary information that can be drawn from the Project data for the landholders' potential benefit;

(iv) engaging with other members of the local community to provide factual information about the Project; and

(v) undertaking the Project in a manner consistent with upholding public safety and in compliance with all relevant environment and planning laws and regulations.

(e) Should a dispute arise between the Recipient and a landholder upon whose land the Recipient proposes to undertake the Project and that dispute cannot be resolved by mutual agreement between the Recipient and the landholder, the Recipient agrees that it will attend mediation to be organised by the Department.

5.2 Demonstration of ability to Complete(a) The Recipient must, by the Demonstration Date, provide evidence to

the Department demonstrating that it will be able to achieve the Milestones by the Milestone Deliverable Dates and Complete the Project by the Completion Date.

(b) If the Department is not reasonably satisfied by the evidence supplied under clause 5.2(a), the Department may terminate this Agreement in accordance with clause 18 as though the failure to demonstrate ability to Complete is a breach that cannot be rectified.

5.3 Commencement and Completion of Project(a) The Recipient must:

(i) advise the Department in writing (which for the purposes of this clause may be by email) within one (1) week of the commencement of the Project that exploration work has commenced; and

(ii) manage the Project so that the Milestones are achieved by the Milestone Deliverable Dates and the Project is Completed by the Completion Date.

(b) Within two (2) weeks of the Project Completion Date, the Recipient must notify the Department in writing of the Completion of the Project.

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5.4 Variation to Project(a) In undertaking field activities for the Project, if the Recipient’s

Nominated Representative considers that it is necessary to do so in the circumstances, the Recipient will be able to make adjustments to the conduct of specific exploration activities within the agreed exploration work program for the Project which may impact the Indicative Exploration Costs.

(b) The Recipient shall within seven (7) days of any action taken in accordance with clause 5.4(a) provide written reasons to the Department why the adjustments were required and the effect on the Indicative Exploration Costs of those adjustments and its requested revisions to Schedule 2 prior to its claim for the next instalment of the Actual Grant.

(c) The Department will then consider those reasons and inform the Recipient within 14 days whether the Department considers the adjustments were reasonable in the circumstances and if so, will propose any revisions to Schedule 2 as it deems appropriate and notify the Recipient accordingly.

(d) The Department’s proposed revisions shall take effect unless the Recipient rejects the proposed revisions by notice in writing to the Department within five (5) days of receiving notice under clause 5(c).

(e) Nothing in this clause 5 will increase the total Actual Grant.

6. REPORTING AND REVIEW

6.1 Provision of ReportsThe Recipient will provide to the Department for its review and approval:

(a) the Milestone Reports by the relevant Milestone Delivery Date as specified in Schedule 2; and

(b) the Final Milestone Report by the Final Milestone Report Submission Date.

6.2 Form of Reports(a) Each of the Reports must be in a form acceptable to the Department

and are to be provided in standard Adobe Acrobat or Microsoft Word formats and provide the details specified in Schedule 3.

(b) The Reports required in accordance with this Agreement are in addition to and do not replace the statutory reports for the Licence required under the MRSDA.

6.3 Approval of Milestone ReportsThe Department, in its sole discretion, may approve the Milestone Reports where the Milestone Report includes the information as specified in Schedule 3. If the Milestone Report does not contain all the information as required under Schedule 3 the Department is not required to approve the Milestone Report until such information is received.

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6.4 Approval of Final Milestone ReportThe Department, in its sole discretion, may approve the Final Milestone Report if the Final Milestone Report includes the information as specified in Schedule 3. If the Final Milestone Report does not contain all the information as required under Schedule 3 the Department is not required to approve the Final Milestone Report until such information is received.

7. FUNDING

7.1 Payment of Funding(a) Provided that at the time of seeking payment under this Agreement the

Recipient has complied with all of its Licence conditions and there are no outstanding compliance and enforcement notices, directions or prosecutions issued against the Recipient, the Department will pay the Actual Grant instalment in respect of each Milestone on being satisfied that the relevant Milestone has been met.

(b) In determining whether the Milestone has been met the Department will have regard to:(i) the Milestone Report or Final Milestone Report containing the

details specified in Schedule 3; and(ii) any further information that the Department may request under

clause 7.1(c).

(c) At any time in the course of determining of any Actual Grant instalment under clause 7.2, the Department may, by notice in writing, request such further information it requires to verify the Actual Exploration Costs. The Department is not required to approve the Tax Invoice or pay an instalment until such information is received.

7.2 Determination of Actual Grant (a) Each instalment of the Actual Grant will be determined as follows:

(i) where the Actual Exploration Costs are less than the Indicative Exploration Costs, the Actual Grant in relation to the relevant instalment shall be 50% of the Actual Exploration Costs; or

(ii) where the Actual Exploration Costs are more than the Indicative Exploration Costs, the Actual Grant in relation to the relevant instalment will be the Indicative Grant relating to the relevant instalment.

7.3 Submission of Tax Invoice(a) Within 30 days of receipt of a Milestone Report and any other requested

information the Department will advise the Recipient of the Actual Grant instalment amount and will request the Recipient to submit a Tax Invoice to the Department for payment of the relevant instalment of the Actual Grant.

8. DATES FOR COMPLIANCEThe Department may, at its absolute discretion, extend the dates for compliance stipulated in this Agreement by notice in writing to the Recipient.

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9. OBLIGATIONS OF RECIPIENTThe Recipient must:

(a) undertake the Project in accordance with this Agreement, the Guidelines, any methodology set out in the Proposal and all applicable Laws; and

(b) acknowledge the contribution of the Department to its activities whenever possible, including acknowledgements in marketing material, public statements and signage.

10. WARRANTIES(a) The Recipient warrants and represents to the Department as at the

date of this Agreement and during the Term that:(i) if it is a body corporate, it is duly incorporated and validly

existing under the laws of the place of its incorporation;(ii) it has the power to enter into and perform its obligations under

this Agreement and to carry out the Project;(iii) entry into this Agreement, the performance of its obligations

under this Agreement and the completion of the transactions contemplated by this Agreement have been duly authorised; and

(iv) neither the execution nor the performance of this Agreement has or will breach any provision of:(A) a law or treaty or a judgment, decree, ruling, order or

decree of a government or governmental authority or agency binding on it; or

(B) any other document which is binding on it or its assets.

(b) The Recipient must take all steps and provide all information and documents with regard to the warranties and representations as the Department may reasonably require and give the Department and its solicitors such assistance and facilities as they may reasonably require to enable them to fully investigate the accuracy of the warranties and representations referred to in this clause.

11. INTELLECTUAL PROPERTY

11.1 Grant of licence(a) The Intellectual Property in the Milestone and Final Milestone Reports

created by the Recipient under this Agreement vest in the Recipient.

(b) The Recipient grants to the Department a permanent, unconditional, irrevocable, royalty-free, non-exclusive, world-wide, perpetual, transferable licence (including a right of sub-licence) to use, copy, reproduce, adapt, modify, exploit, publish, distribute and communicate the Reports for any purpose associated with the activities of the Department, anywhere in the world after the Department has received and approved the Final Milestone Report.

11.2 Recipient warranty and indemnityThe Recipient warrants that:

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(a) any use by the Department of the Milestone and Final Milestone Reports does not and will not infringe the rights (including Intellectual Property) of any third party; and

(b) the Recipient will, at no further cost to the Department, procure in favour of the Department all licences and consents to use, copy, reproduce, communicate, adapt and exploit any Intellectual Property of a third party which is comprised in or is necessary for the use of the Reports,

and indemnifies the Department for any breach of these warranties.

12. RECORDS (a) The Recipient will keep, and will use its best endeavours to ensure

that any of its contractors keep full and accurate records of the conduct of the Project and the Exploration Costs (‘Records’) and make the Records available to the Department throughout the course of the Project and upon the Completion of the Project whenever reasonably requested by the Department.

(b) The Recipient must retain the Records for a period of not less than 7 years after the Project Completion Date.

(c) For the avoidance of doubt, the requirements under this clause 12 are not intended to replace any record keeping requirements that apply to the Licence under the MRSDA and to the extent the requirements under this clause 12 conflict with the requirements under the MRSDA the requirements of the MRSDA prevail.

13. INFORMATION

13.1 Confidential information(a) The Recipient and the Department may disclose information (including

on the internet) about the content of this Agreement unless the information is Confidential Information.

(b) Each party agrees to treat all Confidential Information as confidential and not to disclose it to any third party without the prior written consent of the other party, except in the following circumstances:(i) where the disclosure is required by Law or by this Agreement;(ii) where the disclosure is reasonably required by any persons

performing their obligations under this Agreement;(iii) any disclosure to that party’s own professional advisers, or its

insurer; or(iv) if requested by the Auditor-General, the Ombudsman, or the

Minister responsible for the portfolio under which the Project operates.

(c) Subject to clause 13.1(b), each party will ensure that any third party to which it discloses Confidential Information is made aware of the confidential nature of the Confidential Information.

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13.2 Publicity(a) Other than announcements the Recipient is required to make to any

relevant stock exchange, no public announcement or communication relating to the negotiations of the parties or the subject matter or terms of this Agreement may be made or authorised by or on behalf of the Recipient without the prior written approval of the Department. Any other inquiries from members of the public or other announcements must be referred in a timely way to the Department.

(b) The Recipient agrees to use key messages authorised by the Department (as varied from time to time) for use in any public verbal or written communications about the TARGET Minerals Exploration Initiative or related Departmental program for minerals exploration relevant to the geological province within which the Recipient is undertaking the Project.

(c) Notwithstanding clause 13.1, the Recipient acknowledges that the Department may make such public announcement or communication as it may in its sole discretion decide provided that such public announcement or communication does not disclose specific details of the Final Milestone Report until after the expiry of the Confidentiality Period.

(d) Despite any other provision of this Agreement, the Department may publicly disclose the results of the Project, including the contents of the Proposal or the Final Milestone Report, at any time after the expiry of the Confidentiality Period.

14. INSURANCE(a) The Recipient must, for as long as any obligations remain in

connection with this Agreement, have the insurance specified in Schedule 1, Item 4.

(b) Whenever reasonably requested, the Recipient must provide the Department with evidence satisfactory to the Department that the Recipient has complied with its obligations under this clause within 2 weeks of the request.

15. INDEMNITY(a) The Recipient will indemnify the Department, its officers, employees

and agents (and keep the Department, its officers, employees and agents indemnified) against all damages, losses and expenses (including legal costs on an indemnity basis) together with the cost of time spent, resources use and disbursements paid by the Department, arising in any way: (i) for personal injury, illness or death of any person to the extent

the injury, illness or death is caused or contributed to by any act or omission or breach of this Agreement by the Recipient, or the Recipient’s contractors or subcontractors in the course of executing the Project;

(ii) relating to loss or damage to the Department’s property or any property of a third party to the extent that the loss or damage is caused or contributed to by any act or omission or breach of

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this Agreement by the Recipient, or the Recipient’s contractor or subcontractors in the course of executing the Project; or

(iii) arising out of a breach by the Recipient, the Recipient’s contractor or subcontractors of an obligation arising under this Agreement or of a Law in the course of executing the Project.

(b) The Recipient’s liability to indemnify the Department under this clause:(i) will be reduced proportionally to the extent that any negligent

act or omission by the Department contributed to the relevant losses; and

(ii) does not extend to Consequential Loss.

(c) The right of the Department to be indemnified under this clause 15 is in addition to, and not exclusive of, any other right, power or remedy provided by law.

16. CONFLICT OF INTEREST(a) The Recipient warrants that to the best of its knowledge after making

diligent enquiry, at the date of this Agreement no conflict exists or is likely to arise in the performance of the Recipient’s obligations under this Agreement.

(b) The Recipient must ensure that no conflict arises with the Department during the Term of the Agreement.

(c) If a conflict arises during the Term, the Recipient must:(i) immediately notify the Department in writing of that conflict and

of the steps the Recipient proposes to take to resolve or otherwise deal with the conflict;

(ii) make full disclosure to the Department of all relevant information relating to the conflict; and

(iii) take such steps as the Department may reasonably require resolving or otherwise dealing with that conflict.

(d) If the Recipient fails to notify the Department under this clause or is unable or unwilling to resolve or deal with the conflict as required, the Department may terminate this Agreement in accordance with clause 18 as though this failure was a breach that cannot be rectified.

17. CHANGE OF CIRCUMSTANCESThe Recipient will immediately notify the Department upon becoming aware of any change in its circumstances which may:

(a) impact adversely on its capacity to Complete the Project; or

(b) otherwise affect its eligibility to receive the Actual Grant.

18. TERMINATION(a) The Department may immediately terminate this Agreement upon

giving written notice of termination to the Recipient if:(i) the Recipient fails to fulfil or breaches any condition or

obligation of this Agreement and fails to rectify such breach within 2 weeks after receipt of written notice from the

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Department setting out details of the breach and requiring the Recipient to rectify such breach;

(ii) the Recipient breaches any condition or obligation of this Agreement which cannot be rectified;

(iii) the Department is satisfied that any statement made in the Proposal, the Reports or any supporting information provided by the Recipient is incorrect, incomplete, false or misleading in a way which would have materially and adversely affected the original decision to enter into this Agreement or any decision to approve payment of any instalment of the Actual Grant;

(iv) the Department is satisfied that, as a result of a notice given under clause 17, the Recipient no longer meets the eligibility requirements for the Initiative as set out in the Guidelines;

(v) the Recipient has engaged or may engage in any conduct which affects or may adversely affect the goodwill or reputation of the Recipient, the Project, the Department, a Minister, or the State;

(vi) the Department is of the opinion that continued association with the Project, or the Recipient may bring a Minister, the Department or the State into disrepute;

(vii) the Recipient, by written notice to the Department, withdraws from the Project; or

(viii) the Recipient suffers an Insolvency Event.

(b) The Recipient may terminate this Agreement upon giving 14 days written notice to the Department that it no longer wants to undertake or continue with the Project.

19. DISPUTE RESOLUTION(a) The parties must use reasonable endeavours to resolve any dispute

which may arise out of this Agreement or its implementation. Any meeting held under this clause 19 will be held at the offices of the Department unless otherwise agreed.

(b) If a dispute does arise, a party may, by notice in writing to the other party, call a meeting of the representatives of both parties to attempt to resolve the dispute.

(c) If the representatives of the parties do not resolve the dispute within 4 weeks after the notice given under clause 19(b), the chief executive officer of the Recipient and the chief executive officer of the Department (or their nominee) must meet within a further 4 weeks to resolve the dispute.

(d) If a dispute is not resolved under clause 19(c), either party who has complied with this clause may terminate the dispute resolution process.

(e) Notwithstanding the existence of a dispute, each party must continue to perform their obligations under this Agreement.

(f) A party may commence court proceedings relating to any dispute arising under this Agreement at any time where that party seeks urgent interlocutory relief.

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20. AUDIT AND PERFORMANCE REVIEW(a) The Department may conduct, or the Department may engage a third

party to conduct, a performance review or an audit of the Recipient at any reasonable time, at the Department’s own expense:(i) for the purpose of monitoring and assessing the Recipient’s

performance of its obligations under this Agreement or delivery of the Project;

(ii) if the Department has reasonable concerns that the Recipient may not be delivering, or may be unable to deliver, all or part of the Project in accordance with this Agreement;

(iii) if the Recipient’s Records give the Department reasonable concern about the Recipient’s compliance, or ability to comply, with this Agreement;

(iv) if the Department has reasonable concerns that the Recipient is not financially stable;

(v) if the Department has reasonable concerns that the Recipient has misused all or part of the Actual Grant; or

(vi) to confirm whether the Actual Grant has been used for the correct purposes.

(b) The Recipient will:(i) cooperate with and provide assistance to the Department,

Auditor General, or any third party engaged by the Department to conduct an audit or performance review;

(ii) make available to the Department, Auditor General, or any third party engaged by the Department all information and Records needed for the audit or performance review in accordance with any written request from the Department or third party engaged by the Department; and

(iii) allow the Department, Auditor General or any third party engaged by the Department access to the Recipient’s premises or place of business to carry out the audit or performance review.

21. ASSIGNMENT(a) The Recipient shall not assign nor purport to assign this Agreement or

any right under this Agreement without the prior written consent of the Department which may be granted or withheld in the Department’s absolute discretion.

(b) The Department may assign this Agreement and any right under this Agreement by notice to the Recipient.

22. COSTS AND STAMP DUTY(a) Each party shall bear its own costs in relation to the preparation and

administration of this Agreement.

(b) The Recipient is responsible for paying any stamp duty payable on this Agreement and on any transaction undertaken or instrument or other document executed to give effect to any provision of this Agreement.

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23. GST(a) The parties acknowledge that all amounts stated in this Agreement

exclude GST except where otherwise stated.

(b) Where any Supply by the Recipient to the Department is a Taxable Supply, the Recipient shall be entitled to recover from the Department at the time of submitting a Tax Invoice, an amount equal to the Recipient’s GST liability in respect of the Supply calculated in accordance with the GST Act.

24. GENERAL

24.1 Notices(a) A notice required or authorised to be given or served upon a party

under this Agreement must be in writing in the English language and may be given or served by prepaid post or hand to that party at its address, or email address appearing in Schedule 1, Item 1 or such other address, or email address as the party may have notified in writing to the other party.

(b) In the absence of proof to the contrary a notice is deemed to have been given or served on the party to whom it was sent:(i) in the case of hand delivery, upon delivery during Business

Hours of the party to whom the notice is addressed;(ii) in the case of pre-paid post, three Business Days after the date

of dispatch; and(iii) in the case of email, on receipt by the send of confirmation of

receipt, except that a notice that is delivered or emailed after 5.00pm will be deemed to be received on the next business day.

(c) A notice given or served under this Agreement is sufficient if:(i) in the case of the Department, it is signed by the Secretary of

the Department (or his or her nominee);(ii) in the case of a corporation, it is signed by a director or

secretary of that corporation; and(iii) in the case of an individual, it is signed by that individual.

(d) The provisions of this clause are in addition to any other mode of service permitted by law.

(e) In this clause: (i) ‘notice’ includes a demand, request, consent, approval, offer

and any other instrument or communication made, required or authorised to be given under or pursuant to a provision of this Agreement; and

(ii) ‘Business Hours’ means from 9.00am to 5.00pm on a Business Day.

24.2 Relationship between the partiesNo party:

(a) is in any way the agent or partner of another party for any purpose whatsoever nor has any right to hold itself out as such; and

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(b) may make any promise, warranty or representation nor execute any contract or otherwise deal in the name of or on behalf of another party.

24.3 Amendments or variations in writingExcept as provided for in clause 5.4, no amendment or variation to this Agreement has any force unless it is in writing and signed by all of the parties to this Agreement.

24.4 CounterpartsThis Agreement is validly executed if executed in one or more counterparts. The exchange of executed counterparts will create a binding agreement.

24.5 No mergerThe covenants, conditions, provisions and warranties contained in this Agreement do not merge or terminate upon completion of the transactions contemplated in this Agreement but to the extent that they have not been fulfilled and satisfied or are capable of having effect, remain in full force and effect.

24.6 Entire AgreementThis Agreement constitutes the entire agreement of the parties as to its subject matter and supersedes and cancels all prior arrangements, understandings and negotiations in connection with it. Any statement made in negotiations for this Agreement, which is not set out in this Agreement, does not form part of the agreement between the parties.

24.7 InconsistencyWhere there is a variation or inconsistency between the provisions of the Schedules to this Agreement and the provisions of clauses 1 to 24 of this Agreement the provisions of clauses 1 to 24 shall prevail.

24.8 Further assurancesEach party must do all things and execute all further documents necessary to give full effect to this Agreement and refrain from doing anything that might hinder the performance of this Agreement.

24.9 No waiver(a) The failure of a party at any time to require full or partial performance

of any provision of this Agreement does not affect in any way the full right of that party to require that performance subsequently.

(b) The waiver by any party of a breach of a provision of this Agreement is not deemed a waiver of all or part of that provision or of any other provision or of the right of that party to avail itself of its rights subsequently.

(c) Any waiver of a breach of this Agreement must be in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

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24.10 Governing law and jurisdictionThis Agreement is governed by the laws of Victoria and the parties submit to the exclusive jurisdiction of the courts of Victoria.

24.11 SeverabilityWhere any provision of this Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement and the parties must attempt to replace that severed part with a legally acceptable alternative clause that meets the parties’ commercial objectives.

24.12 Equal Opportunity, Anti-Discrimination and Privacy LawsThe Recipient shall comply with the provisions of all Victorian and Commonwealth privacy, anti-discrimination and equal opportunity legislation.

24.13 SurvivalClauses 7, 10, 11, 12, 13, 14, 15, 19, 20 and 24.13 shall survive the expiration or earlier termination of this Agreement.

EXECUTED AS AN AGREEMENT

SIGNED by Anthony Hurst, Executive Director, Earth Resources Policy and Programs, for and on behalf of the State of Victoria in the presence of:

))))))

)

Signature of WITNESS Name of WITNESS

SIGNED for and on behalf of [company name] in accordance with section 127 of the Corporations Act 2001 by two of its Directors or a Director and a Company Secretary

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Signature of DIRECTOR Signature of DIRECTOR /

SECRETARY

Name of DIRECTOR (print) Name of DIRECTOR / SECRETARY

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Schedule 1 Details of Agreement

1. Recipient:

Contact name:

Address:

Telephone:

Email:

Department

Contact name: KATE KITCHEN

Address: LEVEL 17, 1 SPRING STREET, MELBOURNE

GPO BOX 2392, MELBOURNE, VIC 3001

Telephone: (03) 9452 8961

Email: [email protected]

2. Licence:

3. Insurances:

Workers’ compensation

As required by Law.

Public liability insurance

$10 million per claim.

Motor vehicle insurance

As required by Law.

4. Demonstration Date

5. Completion Date

6. Final Milestone Report Submission Date

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Schedule 2 Milestones and Indicative Grant (excluding GST)

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Instalment

Milestone Deliverables Indicative Grant (excluding GST)

Indicative Exploration Cost

Milestone Deliverable Date

1 Pre Milestone [Where relevant]

[Prior to project commencement date as per Clause 3.2]

2 Milestone 13 Milestone 24 Milestone 35 Final MilestoneTotal

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Schedule 3 Reports

The Recipient must provide the following reports to the Department which will be subject to Departmental quality control measures to ensure that all data and information provided is sufficient to inform the Department as to the progress and completion of the Project:

1. Milestone Report

Milestone Reports in relation to the Project must contain the following information:

(a) summary of exploration work completed;

(b) interim results of exploration work completed;

(c) a statement in respect to any deviation or otherwise from the Indicative Exploration Costs;

(d) all geological data collected through exploration works;

(e) representative samples of any drill holes (split core from diamond holes or drill chips from other types of drilling) as specified in the Recipient’s Proposal set out in Schedule 4;

(f) written details of the Actual Exploration Costs in relation to each Milestone, including copies of any invoices for any costs claimed as Actual Exploration Costs; and

(g) any other information considered relevant by the Department and notified to the Recipient.

2. Final Milestone Report

A Final Milestone Report in relation to the Project must contain the following information:

(a) all geological data collected through exploration works;

(b) an interpretation of results, conclusions and recommendations for further work (with direct reference to the Project and the Proposal);

(c) plans and cross-sections detailing the results;

(d) representative samples of any drill holes (split core from diamond holes or drill chips from other types of drilling) as specified in the Recipient’s Proposal set out in Schedule 4; and

(e) any other information considered relevant by the Department and notified to the Recipient.

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Schedule 4 Proposal

(See attached)

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Schedule 5 Guidelines

(See attached)

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