NATIONAL WORKFORCE DEVELOPMENT FUND TRI-PARTY DEED

Transcription

1 Community Services and Health Industry Skills Council (ABN ) National Disability Services Limited (ABN ) Registered Training Organisation (Enter ACN) NATIONAL WORKFORCE DEVELOPMENT FUND TRI-PARTY DEED [Drafting notes: 1. This Agreement is a companion subcontract to the Commonwealth Department of Industry Funding Agreement for the National Workforce Development Fund for (customised for the Disability Workforce Innovation Network Project) and is not intended to be used with any other Funding Agreement; 2. Clauses marked with an asterisk (*) are mandatory as required under the Funding Agreement.] FINAL PRO-FORMA 30 May 2014 Community Services & Health Industry Skills Council ABN PO Box H61 Australia Square 1215 T F E admin@cshisc.com.au W

2 TABLE OF CONTENTS CONTRACT SCHEDULE TERM OVERVIEW OF PURPOSE AND PARTIES Subcontract Project Manager Project Funding Enterprise Contribution Undertaking the Approved Project PROJECT MANAGER OBLIGATIONS Project Manager obligations PARTICIPATING ORGANISATION OBLIGATIONS Approved Projects RTO Selection Enterprise selection Learners If training unsatisfactory Access to Learners and sites Where PO is a professional association RTO OBLIGATIONS Approved Projects Learners Enterprises Registration, investigations and complaints PROJECT FUNDS Use of Project Funds by the RTO or the PO What Project Funds cannot be used for Payment of Project Funds Suspension or withholding of the Project Funds Reduction RTO or PO to provide invoice Incorrect invoices, under/over payment Continuance of obligations Funding and other government support Bank account No additional Project Funds Repayment of Project Funds Commencement payment Credit Transfer adjustment Progression and Completion payments Withdrawal by Learners Withdrawal by the Enterprise Non-Eligible Training Page i

3 6.19 Enterprise Contribution GST AND OTHER TAXES No additional Project Funds BOOKS AND RECORDS* PO and RTO to keep books and records Financial records Learner information records Provision of records Cost Survival AUDIT AND ACCESS* Right to conduct audits Access to Premises and Records Conduct of audit and access Costs Access and audit by other relevant parties No reduction in responsibility Subcontractor requirements No restriction Survival REPORTING* Reporting Format and content of reports MONITORING AND EVALUATION* Progress Meetings Evaluation Notifications ACKNOWLEDGEMENT OF SUPPORT AND PUBLIC STATEMENTS Acknowledgement of support Publicity WARRANTIES Warranties by PO Warranties by RTO CONFLICT OF INTEREST* Warranty Notification of a conflict of interest PROTECTION OF PERSONAL INFORMATION* Application of this clause Obligations Subcontractors Indemnity by PO Indemnity by RTO Definitions Page ii

4 15. COMPLIANCE WITH OTHER LAWS AND POLICIES* Compliance with Laws Working with Children Checks WORK HEALTH AND SAFETY General safety obligations Subcontracts Relationship to other obligations INTELLECTUAL PROPERTY RIGHTS* Background IP and Third Party Material Commonwealth Material Ownership of Third Party Material Ownership of Project Materials Licence from PO and the RTO Licence to PO and the RTO PO Warranties RTO Warranties Remedy for breach of warranty by PO Remedy for breach of warranty by RTO MORAL RIGHTS Obtaining consents Specified Acts INSURANCE* Obligation to maintain insurance Certificate of currency TERMINATION WITH COSTS AND REDUCTION* Termination and reduction for convenience Termination for Default by PO or RTO After termination Project Manager's rights Termination does not affect accrued rights LIABILITY AND INDEMNITY* PO s indemnity RTO s indemnity DISPUTES Dispute Referral of Dispute Mediation Costs Confidentiality Termination and breach CONFIDENTIALITY* Prohibition on disclosure Page iii

5 23.2 Conditions of approval Advisers and third parties Exceptions to obligations Obligation on disclosure Additional confidential information Period of confidentiality No reduction in privacy obligations Return of information Confidential Agreement Provisions SUBCONTRACTING AND PERSONNEL* Subcontracting* Use of Specified Personnel Removal of Personnel NOTICES SURVIVAL* GENERAL No security Variation Approvals and consents Assignment and novation Costs Counterparts Entire agreement Further action Waiver Relationship Priority of Documents Governing law Operation and nature of indemnities False or misleading information* DEFINITIONS AND INTERPRETATION Definitions Interpretation SCHEDULE 1 APPROVED PROJECT DETAILS ANNEXURE A PRIVACY NOTICE ANNEXURE B CS&HISC NWDF TRAINING RECORD ANNEXURE C WORKING WITH CHILDREN CHECKS ANNEXURE D APPROVED PROJECT RESPONSIBILITY SUMMARY ANNEXURE E - ENTERPRISE LETTER OF COMMITMENT ANNEXURE F NWDF APPLICATION FORM Page iv

6 NATIONAL WORKFORCE DEVELOPMENT FUND TRI-PARTY DEED This Agreement is dated 2014 PARTIES Community Services and Health Industry Skills Council Limited (ABN ) of Level 13, 1 Castlereagh Street SYDNEY NSW 2000 (Project Manager) The Participating Organisation named in the Contract Schedule (Participating Organisation or PO) The Registered Training Organisation named in the Contract Schedule (Registered Training Organisation or RTO) AGREEMENT The Project Manager, the PO and the RTO agree to enter into this Agreement in relation to the National Workforce Development Fund on the attached Terms and Conditions. CONTRACT SCHEDULE Item 1. Name of Participating Organisation National Disability Services Limited Item 2. Item 3. Item 4. Item 5. Item 6. Item 7. ACN or ABN of Participating Organisation Address of Participating Organisation for notices (Address, Fax and contact name) Name of Registered Training Organisation ACN or ABN of Registered Training Organisation Address of Registered Training Organisation for notices (Address, Fax and contact name] Address of the Project Managers for notices (Address, Fax and contact name) Level 14, 1 Castlereagh Street SYDNEY NSW 2000 Fax: (02) Gordon.duff@nds.org.au Contact Name: Gordon Duff [insert] [insert] [insert] Level 13, 1 Castlereagh Street, Sydney NSW 2000 Fax: (02) Jen.hamer@chsisc.com.au Contact Name: Dr Jen Hamer Item 8. Commencement Date Subject to clauses 4.2 and 4.3,[insert date of approval], date not to be before the commencement date of the Subcontract. Page 1

7 Item 9. Term The Term commences on the Commencement Date and subject to the terms and conditions ends on the End Date. End Date The earlier of: [insert]; and December 2015 (the end date of the Subcontract) Item 10. Guidelines and principles National Workforce Development Fund Revised Interim Guidelines and any replacement guidelines as found on Item 11. Program The National Workforce Development Fund Item 12. Department policies The Department policies as notified by the Project Manager to the PO and the RTO from time to time. Item 13. Enterprise(s) [insert name, ABN and address] of the employer(s) of the Learners. Page 2

8 EXECUTED as an Agreement Signed for Community Services and Health ) Industry Skills Council Limited (ABN ) by its duly authorised ) representative, in the presence of: ) Signature of witness Signature of authorised representative Name of witness Name of authorised representative Date Signed for National Disability Services ) Limited (ABN ) by its duly authorised representative, in the presence of: ) ) Signature of witness Signature of authorised representative Name of witness Name of authorised representative Date Signed for [insert name of RTO],[insert ) ABN] by its duly authorised representative, in the presence of: ) ) Signature of witness Signature of authorised representative Name of witness Name of authorised representative Date Page 3

9 1. TERM NATIONAL WORKFORCE DEVELOPMENT FUND TRI-PARTY DEED TERMS AND CONDITIONS The rights and obligations of the parties under this Agreement begin on the Commencement Date and, except in relation to those clauses that are expressly stated to continue, end on the earlier of: the date of termination under clause 20; (d) the expiration or termination of the Funding Agreement; the expiration or termination of the Subcontract; or End Date. 2. OVERVIEW OF PURPOSE AND PARTIES 2.1 Subcontract The parties acknowledge that the Project Manager and the PO have entered into the Subcontract, which is a companion document to this Agreement. The parties acknowledge that as between the Project Manager and the PO, to the extent of any inconsistency between the Subcontract and this Agreement, the terms and conditions of the Subcontract shall prevail. 2.2 Project Manager The Project Manager is entering this Agreement with the PO and the RTO to meet the Project Manager s obligations under the Funding Agreement for delivery of the National Workforce Development Fund Program (Program). 2.3 Project Funding The Project Manager must provide the Project Funding pursuant to the terms of this Agreement. 2.4 Enterprise Contribution The PO must ensure that the Enterprise makes the Enterprise Contribution to the RTO as set out in clause Undertaking the Approved Project The PO and the RTO must: Page 4

10 (d) comply with their respective obligations in relation to the Program and the Approved Project; comply with all reasonable requests from the Project Manager to assist in the delivery of the Program and the Approved Project; undertake the Approved Project to achieve the Outcomes; fulfil all of their obligations under this Agreement and undertake the Approved Project diligently, effectively and to a high professional standard in accordance with: (ii) (iii) all applicable Laws; the Guidelines and principles specified in the Contract Schedule; and the Department policies as notified by the Project Manager to the PO and RTO from time to time; (e) (f) (g) complete the Approved Project within the Project Period; meet with the Project Manager on a regular basis to discuss the progress of the Approved Project; fulfil all their obligations within the Project Period; (h) meet the due dates for the Milestones as specified in Schedule 1; (j) (k) not act in any way that may bring the Approved Project, the Program, the Project Manager or the Department into disrepute; not act in any way that may cause the Project Manager to be in breach of its obligations under the Funding Agreement; and assist the Project Manager in performing its reporting requirements under the Funding Agreement. 3. PROJECT MANAGER OBLIGATIONS 3.1 Project Manager obligations The Project Manager is entering this Agreement with the PO and RTO to meet the Project Manager s obligations under the Funding Agreement for delivery of the Program. The Project Manager will: provide the Project Funds in accordance with clause 6; Page 5

11 (ii) (iii) monitor the Approved Project; and provide all assistance and advice that the Project Manager considers reasonable to assist the PO and the RTO to meet the objectives and requirements of the Program and Approved Project. 4. PARTICIPATING ORGANISATION OBLIGATIONS 4.1 Approved Projects The PO must: (ii) undertake the Approved Project to achieve the Outcomes; undertake the Approved Project diligently, effectively, to a high professional standard and in accordance with: (A) (B) (C) all applicable Laws; any guidelines and principles specified in the Contract Schedule; and any Commonwealth policies and specific requirements set out in the Contract Schedule; (iii) (iv) (v) (vi) (vii) (viii) (ix) meet the due dates for the Milestones; ensure that the Enterprise makes the Enterprise Contribution to the RTO in accordance with clause 6.19; meet with the Project Manager on a regular basis to discuss the progress of the Approved Project (for the first six months on a fortnightly basis) or as otherwise agreed between the parties; implement the Program and the Approved Project in accordance with this Agreement; provide the Project Manager with any data reasonably requested by Project Manager concerning the Approved Project; ensure that a RTO delivering the training for an Approved Project is selected in accordance with clause 4.2; ensure that an Enterprise whose employed Learners participating in the training for an Approved Project is selected in accordance with clause 4.3; Page 6

12 (x) (xi) (xii) (xiii) ensure that all training funded pursuant to the terms and conditions of this Agreement is delivered as part of an Approved Project and is Eligible Training; ensure that the number of Learners who receive training in Eligible Training for each Approved Project is equal to or less than the Total of Learners specified in Schedule 1 for the corresponding Approved Project; ensure that where a Learner exits Eligible Training prior to Completion, they do not enrol in other Eligible Training as part of the Approved Project; and in any case where an Approved Project remains incomplete as at the end of the Project Period, work as directed by the Project Manager to ensure that the Approved Project is completed in accordance with this Agreement. The PO must not engage with any other registered training organisation in relation to an Approved Project without: (ii) the prior written consent of the Project Manager; and entering into an agreement with that registered training organisation on terms substantially similar to this Agreement and as approved by the Project Manager. 4.2 RTO Selection (d) The rights and obligations under this Agreement are subject to the PO having complied with the requirements in this clause 4.2. The PO must ensure that the training for the Approved Project is only conducted by the RTO following selection by the PO and approval by the Project Manager and the Department in accordance with this clause 4.2. The PO must consult with the Project Manager in relation to the suitability of the RTO to deliver the training in accordance with this Agreement. For the avoidance of doubt, the PO must undertake this consultation process prior to seeking the approval of the Department pursuant to clause 4.2(d). If the PO wishes to use an RTO, the PO must: (ii) complete the NWDF Application Form; lodge the NWDF Application Form with the Department; and Page 7

13 (iii) liaise with the Department as necessary to ensure that the NWDF Application Form is approved by the Department. (e) (f) The parties acknowledges that the Department will notify the Project Manager if and when an NWDF Application Form has been approved and the Project Manager will advise the PO and of the Department s decision as soon as reasonably possible after receiving notification from the Department. The PO must ensure that each NWDF Application Form includes all other documentary evidence as may be required: (A) (B) pursuant to the NWDF Application Form; and suggested by the Project Manager during the consultation process outlined in clause Enterprise selection The rights and obligations under this Agreement are subject to the PO having completed the requirements in this clause 4.3. The PO must for each Approved Project: (ii) (iii) ensure that the Enterprise which employs the relevant Learners has signed a letter substantially in the form of the Enterprise Letter of Commitment in Annexure E. ensure that the Enterprise Letter of Commitment is submitted with the NWDF Application Form; and consult with the Project Manager in relation to the suitability of the Enterprise to be involved in the training in accordance with the Approved Project. For the avoidance of doubt, the PO must undertake this consultation process prior to seeking the approval of the Department pursuant to clause 4.2(d). 4.4 Learners The PO must, for each Approved Project: conduct checks to confirm whether all potential Learners meet the criteria specified in the Guidelines (specifically page 4) and have the required literacy and numeracy to participate in the Approved Project; advise the RTO of any Learner changes to, withdrawals from or cancellations to the Approved Projects; and Page 8

14 work with the Project Manager to evaluate and report on the impact of the training delivered under the Program and on any changes to the productivity, performance, staff retention or any other relevant issues. 4.5 If training unsatisfactory If a PO considers that the training provided to any Learner is unsatisfactory, the PO must immediately notify the Project Manager in accordance with clause Access to Learners and sites The PO must provide the Project Manager and the RTO with: all access to each Learner and/or Enterprise necessary and desirable to conduct an Approved Project; and reasonable access during normal business hours to its sites to the extent necessary for the Project Manager and the RTO to fulfil their obligations or exercise their rights under this Agreement. 4.7 Where PO is a professional association In any case where the PO is a professional association or other industry body and the training to be provided as part of an Approved Project is not for the workers of the PO but for the workers of enterprises which are members of the PO s association or otherwise in the PO s industry, the PO must ensure that the PO does not provide any of the Project Funds to any party other than the RTO. 5. RTO OBLIGATIONS 5.1 Approved Projects The RTO must: (d) deliver the training in relation to the Approved Project in accordance with the Guidelines and this Agreement; engage with the Enterprise as required by this Agreement and as reasonably requested by the Project Manager and/or the PO from time to time; provide enrolment, commencement, progression and completion reports to the Project Manager as required by this Agreement and using the templates provided by Project Manager; implement Recognition of Prior Learning assessments and processes where appropriate; Page 9

15 (e) (f) (g) (h) implement the Program and the Approved Projects in accordance with this Agreement; in any case where an Approved Project remains incomplete as at the end of the Project Period, work as directed by the Project Manager to ensure that the Approved Project is completed in accordance with this Agreement; ensure that all training delivered as part of an Approved Project is Eligible Training; advise the Project Manager and the PO of any issues arising with the implementation of the Approved Project and details of any remedial action to be taken by the RTO; and provide evidence of receipt of the Enterprise Contribution to the PO and the Project Manager. 5.2 Learners The RTO must, for each Approved Project: (d) (e) (f) (g) (h) conduct checks to confirm whether all potential Learners meet the criteria specified in the Guidelines (specifically page 4) and have the required literacy and numeracy to participate in the Approved Project; ensure that Project Funds are only claimed and used for Learners who are eligible to receive training; ensure that all Learners meet all licensing and other requirements for their intended Eligible Training before they receive any training toward that Eligible Training as part of an Approved Project; give all Learners the completed Privacy Notice at Annexure A of this Agreement prior to the collection of personal information from them for the purpose of the Approved Project; ensure that Learners complete and sign a Training Record at Annexure B of this Agreement, or as otherwise agreed by the Project Manager; ensure that each Enterprise co-signs the Learner training record prior to each submission to the Project Manager; record all training activity as directed by the Project Manager; and ensure that the RTO retains a copy of a Learner s certificate or diploma and a competency assessment summary for the full qualification on Completion. Page 10

16 5.3 Enterprises The RTO must for each Approved Project: engage with the Enterprise as required by this Agreement; advise the PO and the Project Manager of any changes to, withdrawals from or cancellations by the Enterprise; and work with the Project Manager to evaluate and report on the impact of the training delivered under the Program and on any changes to the productivity, performance, staff retention or any other relevant issues. 5.4 Registration, investigations and complaints The RTO warrants that it is shown as being registered with an Applicable Regulator to deliver all Eligible Training set out in Schedule 1 on The RTO must notify the Project Manager and the PO immediately in the event of any investigation by an Applicable Regulator into any complaint against the RTO or if the RTO loses the registration referred to in clause 5.4 and must continue its registration for the Term. 6. PROJECT FUNDS 6.1 Use of Project Funds by the RTO or the PO The RTO must only use or disburse the Project Funds for the purposes of undertaking the Approved Project and in accordance with this Agreement and the Guidelines. 6.2 What Project Funds cannot be used for The RTO must not spend any part of the Project Funds: on capital works or the acquisition of major equipment; or on expert advice that has already been provided or is available through government businesses or a government extension project. 6.3 Payment of Project Funds Subject to clauses 6.3 and 6.4 and 6.5 the receipt of the relevant Project Funds from the Commonwealth under the Funding Agreement, the Project Manager must pay the Project Funds to the RTO on the achievement of the Milestones. Page 11

17 All payments of Project Funds by the Project Manager will be paid in arrears within 30 days of receipt of a correctly rendered Tax Invoice (in the format included in Schedule 1) accompanied by documentary evidence sufficient to enable the Project Manager to verify payment to its reasonable satisfaction and are subject to: (ii) (iii) (iv) sufficient Project Funds being available under the Commonwealth Funding Agreement; the RTO or the PO complying with all their obligations under this Agreement; the PO and the RTO achieving the Milestones; and receipt of written evidence by the Project Manager of: (A) (B) (C) the Enterprise Contribution having been made by Enterprise to the RTO; written confirmation of documents (as applicable) required pursuant to clauses 6.13 and 6.15 and Schedule 1; and any other support documentation required under this Agreement or notified by the Project Manager (acting reasonably) to the PO and the RTO as being required. 6.4 Suspension or withholding of the Project Funds Without limiting any other right or remedy of the Project Manager's rights under this Agreement, the Project Manager may withhold or suspend payment of all or any part of the Project Funds if: (ii) (iii) (iv) (v) the Enterprise Contribution due to be provided before the date for payment has not be provided, until the Enterprise Contribution has been provided; a Report due to be provided has not been provided or the Report is not accurate or complete; a Milestone due to be achieved has not been achieved; the RTO and/or the PO are otherwise in breach of this Agreement; the RTO or the PO has not undertaken the Approved Project to the satisfaction of the Commonwealth, until the PO and the RTO remedies its performance; Page 12

18 (vi) (vii) (viii) (ix) any invoice provided to the Project Manager by the RTO is not accompanied by supporting documentation required under this Agreement; the PO or the RTO have any outstanding money owing to the Project Manager under any arrangement with the Project Manager; if the PO and/or RTO are being investigated by an Applicable Regulator and/or have received a sanction, suspension or cancellation under the National Vocational Education and Training Regulator Act 2011 (Cth); or the RTO and/or the PO have not spent Project Funds previously paid to them, until the RTO and the PO has done so. The Project Manager may suspend or withhold the Project Funds until such time as the PO and/or the RTO have fulfilled their obligations under clause 6.4 to the satisfaction of the Project Manager. Despite any suspension, the PO and the RTO must continue to perform their respective obligations not affected by the suspension under this Agreement. 6.5 Reduction Without limiting any other right or remedy of the Project Manager, the Project Manager may reduce the amount of any instalment of the Project Funds: if by the date for payment of the instalment the PO and/or the RTO have not spent Project Funds previously paid to the PO and/or the RTO, by the amount that has not been spent; if, the Project Funds have been spent other than in accordance with this Agreement by the amount that, in the Project Manager's opinion, was spent other than in accordance with this Agreement; and if the Enterprise Contribution due to be provided before the date for payment of the instalment has not been paid, by an amount that represents the same proportion of the total Project Funds as the Enterprise Contribution which has not been paid bears to the total Enterprise Contribution which is payable. 6.6 RTO or PO to provide invoice The RTO or the PO must provide a correctly rendered invoice to the Project Manager for the Project Funds in accordance with the requirements set out in Schedule 1. Page 13

19 6.7 Incorrect invoices, under/over payment If an invoice is found to have been rendered incorrectly after payment, any underpayment or overpayment will be recoverable by or from the recipient, as the case may be. 6.8 Continuance of obligations If the Project Manager exercises its rights under this clause 6, the other parties must continue to perform their obligations under this Agreement, unless the Project Manager agrees otherwise in writing. 6.9 Funding and other government support Each of the PO and RTO must not be receiving funds under any other Commonwealth or State and Territory Government program in relation to the Approved Project unless approved in writing by the Project Manager and the Department and written notice of the approval is given to the RTO/the PO (as relevant). The PO and RTO must provide to the Project Manager full details of any financial assistance for activities in connection with the Approved Project which the PO and/or RTO (as relevant) receives from another Commonwealth, State or Territory government source or agency after the Commencement Date of this Agreement, (Other Financial Assistance) including the amount and source of the funding and the name of the program under which it is provided, within 20 days of the PO and/or RTO (as relevant) receiving notice that the Other Financial Assistance has been approved. The Project Manager may reduce, suspended or defer its payments set out in this Agreement in the event that the PO and/or RTO receive Other Financial Assistance in connection with the Approved Project, but only to the extent of the value of that Other Financial Assistance Bank account The parties acknowledge that all payments by the Project Manager to the RTO will be paid in arrears No additional Project Funds The Project Manager is not responsible for the provision of additional monies to meet any expenditure in excess of the Project Funds. Page 14

20 6.12 Repayment of Project Funds During the Project Period, the Project Manager is entitled to recover from the PO and/or the RTO any amount of money which, at any time the Commonwealth demands to be repaid under the Funding Agreement or has been spent other than in accordance with this Agreement. The Project Manager will provide to the PO and the RTO a copy of the notice of demand to repay provided by the Commonwealth. After the End Date, the Project Manager is entitled to recover from the PO and/or RTO (as relevant): (ii) any Project Funds which have not been spent, or legally committed for expenditure by the PO and/or RTO in accordance with this Agreement and payable by the PO and/or RTO as a current liability (written evidence of which will be required); and any amount of Project Funds which, in the Commonwealth s opinion and/or the Project Manager s reasonable opinion, have been spent other than in accordance with this Agreement. (d) (e) (f) (g) The Project Manager may give the PO and/or the RTO a notice requiring the PO and/or the RTO to repay to the Project Manager (or deal with as specified by the Project Manager) an amount which the Project Manager is entitled to recover under this clause If the Project Manager gives a notice under clause 6.12, the PO and/or the RTO (as relevant) must repay the amount specified in the notice in full (or deal with it as specified by the Project Manager) within 20 days of the date of the notice. Any amount due under this clause 6.12 may be offset against any other amount subsequently due to the RTO or the PO (as relevant) whether under this Agreement or any other arrangement with the Project Manager. If any amount owed is not repaid in accordance with the notice specified under clause 6.12 then the party owing the money to the Project Manager must pay Interest after the expiry of the period due for repayment specified in the notice. Any amount owed (including any Interest payable) under this clause 6.12 is recoverable as a debt owed to the Project Manager without any further proof of the debt by the Project Manager Commencement payment The Project Manager is not required to make the payment referred to in clause 6.3 in relation to Commencement until the Project Manager has received: Page 15

21 written confirmation from the RTO or the PO, copies of relevant pages from the training record in the form of Annexure B, or as otherwise agreed by the Project Manager and signed by the RTO, the Learner and their employer verifying the Commencement; written confirmation from the PO that those Commencements are by workers who are eligible to participate in the Program; signed Privacy Notices in accordance with Annexure A; (d) (e) written confirmation from the RTO or the PO of whether or not any Credit Transfer adjustment applies and if so the total amount of the adjustment, in which case clause 6.14 applies; and such other information as may be directed by the Project Manager from time to time or indicated in Schedule Credit Transfer adjustment If a Credit Transfer adjustment applies as described in clause 6.13, the Project Manager may reduce the amount of the Commencement payment by the total amount of the adjustment, and if the total adjustment is larger than the Commencement payment, the Project Manager may reduce subsequent payments until the adjustment is fully reflected. Where a Learner is entitled to a Credit Transfer for part of the Eligible Training, the Project Manager will make a credit transfer adjustment by reducing the amount paid in respect of that Learner. The amount of the adjustment will be calculated by multiplying the Training Cost by a fraction equivalent to the percentage of the qualification already completed. For example, if the Learner was given Credit Transfer of units equal to 40% of the Eligible Training then amount paid in respect of that Learner would be 60% of the amount which would be payable if no credit transfer adjustment applied Progression and Completion payments The Project Manager is not required to make the payments referred to in clause 6.3 in relation to Progression or Completion payments (as applicable) unless Project Manager has received written confirmation from the RTO or the PO: that the training provided has been satisfactory up to the Progression or the Completion stage as applicable; copies of relevant pages from the Training Record signed by the Learner and their employer verifying the reaching of the Progression or the Completion; and Page 16

22 any other information as may be directed by the Project Manager from time to time or indicated in Schedule Withdrawal by Learners For the avoidance of doubt, if one or more Learners withdraw from an Approved Project: the RTO or the PO must promptly notify the Project Manager; the Project Manager s liability to pay the Project Funds in relation to the relevant Learner will reduce proportionately; and the Project Manager will not be liable for any loss of funds to cover the trainer, travel costs and any other incidentals relevant to the Learner s withdrawal Withdrawal by the Enterprise For the avoidance of doubt, if an Enterprise withdraws from an Approved Project and/or does not comply with its obligations under the Enterprise Letter of Commitment: (d) the RTO and/or the PO must promptly notify the Project Manager; the Project Manager s liability to pay the Project Funds in relation to the relevant Learners will reduce proportionately; and the Project Manager will not be liable for any loss of funds incurred by the RTO or the PO relevant to the Enterprise s withdrawal; and the Project Manager may terminate this Agreement in full or part by written notice to the PO and the RTO Non-Eligible Training Notwithstanding any other clause of this Agreement, the RTO acknowledges that the Project Manager will not pay any Project Funds for enrolments in Non-Eligible Training or for enrolments in Eligible Training where the Department has notified the Project Manager that it has revoked approval of the Eligible Training Enterprise Contribution The PO must ensure that the Enterprise makes the Enterprise Contribution to the RTO in accordance with Schedule 1 and the Enterprise Letter of Commitment. The Project Funds may at any time be reduced, suspended or deferred by the Project Manager, at its direction, if the Enterprise Contribution is not made by the Enterprise in accordance with this Agreement. Page 17

23 (d) The PO and the RTO must report to the Project Manager on the Enterprise Contribution in accordance with the reporting requirements set out in clause 9. The RTO must provide correctly rendered Tax Invoice to the relevant Enterprise for the purposes of receiving the Enterprise Contribution GST AND OTHER TAXES GST Exemption Certain education courses are GST exempt. Clause 6.20(d) only applies if the supply under this Agreement is taxable and not exempt. Construction In clauses 6.20 to (h) words and expressions which are not defined in this Agreement but which have a defined meaning in the GST Law have the same meaning as in the GST Law. Consideration GST exclusive Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST. Payment of GST (d) If GST is payable by a supplier on any supply made under this Agreement, the recipient of the supply will pay to the supplier an amount equal to the GST payable on the supply, in addition to and at the same time that the consideration for the supply is to be provided under this Agreement. Tax invoice (e) Except where clause 6.20(f) applies: (ii) the supplier must deliver a tax invoice or an adjustment note to the recipient of the supply before the supplier is entitled to payment of an amount under clause 6.20(d); and the recipient of the supply can withhold payment of the amount payable under clause 6.20(d) until the supplier provides a tax invoice or an adjustment note as appropriate. (f) If GST is imposed on any supply made by the PO and/or RTO to the Project Manager under this Agreement in return for all or any part of the grant funds, the Project Manager may issue a 'recipient created tax invoice' to the PO and/or RTO for the supply in question (and an adjustment note for any adjustment event in respect of that supply) and the PO and RTO must not issue a tax Page 18

24 invoice (or adjustment note) for or in respect of the supply. Each party warrants that it is GST registered and agrees that it will promptly notify the other party if it ceases to be GST registered. Adjustment event (g) If an adjustment event arises in respect of a taxable supply made by a supplier under this Agreement the amount payable by the recipient of the supply under clause 6.20(d) will be recalculated to reflect the adjustment event and a payment will be made by the recipient of the supply to the supplier or by the supplier to the recipient of the supply as the case requires. Reimbursements (h) No party may claim from the other an amount for which the first party can obtain an input tax credit. Other Taxes The RTO must pay all: (ii) stamp duty (including penalties and interest) assessed or payable in respect of this Agreement and the Project; and subject to clauses 6.20 to 6.20(h), all taxes, duties and government charges imposed or levied in Australia or overseas with the performance of this Agreement No additional Project Funds The Project Manager is not responsible for the provision of additional monies in excess of the Project Funds. 7. BOOKS AND RECORDS* 7.1 PO and RTO to keep books and records Each of the PO and RTO must keep and require its subcontractors to keep and maintain adequate books and records, in accordance with the Accounting Standards: in sufficient detail to enable: (ii) all receipts and payments related to the Approved Project to be identified and reported in accordance with this Agreement; and to enable all amounts payable by the Project Manager under this Agreement to be determined. Page 19

25 retain and require its subcontractors to retain for a period of seven years after the expiry or termination of this Agreement, all books and records relating to the Approved Project; keep: (ii) (iii) (iv) full and accurate financial accounts relating to the operation of the Approved Project; full and accurate Records relating to the delivery of training to Learners including but not limited to, for each Learner, the information required by the Project Manager from time to time; full and accurate financial records relating to the Enterprise participation in the Approved Project and the Enterprise Contribution; and any other Records required to be maintained by the PO or RTO under this Agreement or as may be reasonably requested by the Project Manager from time to time. 7.2 Financial records The RTO and PO must and must ensure their subcontractors keep financial Records relating to an Approved Project to enable: all income and expenditure related to the Approved Project to be identified in the accounts; the preparation of financial statements in accordance with Australian Accounting Standards; and the audit of the Records in accordance with Australian Auditing Standards. 7.3 Learner information records The RTO must maintain, on a separate file for each Learner: (d) (e) (f) proof of the Learner s identity and eligibility for the Program; a detailed record of any Credit Transfer assessment; a detailed record of any Recognition of Prior Learning assessment; a detailed record of any literary/numeracy assessment; a detailed record of any waiver requests/approvals; a signed Privacy Notice in the form specified in Annexure A of this Agreement; Page 20

26 (g) (h) a record of contact with the Learner regarding their training, including a record of attendance or phone/ log detailing content of dialogue exchange; where relevant, evidence of why a Learner has withdrawn from the Approved Project, such as a letter or from the Learner confirming the withdrawal; and any other documents set out in the Guidelines or as directed by Project Manager or the Department from time to time. 7.4 Provision of records 7.5 Cost The RTO and the PO must, and must ensure that each subcontractor, if required by the Project Manager, provides all Records and accounts referred to in this clause 7 to the Project Manager or, if directed by the Project Manager, the Department within the timeframe and manner specified by the Project Manager. The RTO and the PO must bear their own costs of complying with this clause Survival The RTO and PO must retain and must require their subcontractors to maintain all Records and accounts referred to in this clause 7 for a minimum period of seven years after the expiry or termination of this Agreement and must make them available for inspections by the Project Manager or the Department. 8. AUDIT AND ACCESS* 8.1 Right to conduct audits The Project Manager, the Department and their representatives may conduct audits relevant to the performance of the RTO s or the PO s obligations under this Agreement. The audits with respect to the PO and/or the RTO may be conducted of: (d) operational practices and procedures of the PO and the RTO as they relate to this Agreement; accuracy of any invoices and Reports; the PO and the RTO s compliance with their confidentiality and privacy obligations under this Agreement; Material (including books and records) in possession of the PO or the RTO as relevant to the Approved Project and this Agreement; Page 21

27 (e) any other matters determined to be relevant by the Project Manager to the Approved Project or this Agreement. 8.2 Access to Premises and Records The Project Manager, the Department and their representatives may, at reasonable times and on giving reasonable notice to the RTO and the PO: (ii) (iii) (iv) access the premises of the PO and/or the RTO to the extent relevant to the performance of this Agreement; require the provision by the RTO, the PO, and their Personnel of Records and information in a data format and storage medium accessible by the Department by use of Department s existing computer software and hardware; inspect and copy documentation, books and records, however stored, in the custody or under control of the PO and/or the RTO and/or their Personnel; and require assistance in respect of an inquiry into or concerning the Approved Project or this Agreement. For these purposes an inquiry includes any administrative or statutory review, audit, or inquiry (whether within or external to the Department), any request for information directed to the Department and/or the Project Manager, and any inquiry conducted by the Parliament or any Parliamentary Committee. Each of the RTO and the PO must provide access (including any reasonable assistance requested) to their computer hardware and software to the extent necessary for the Project Manager and/or the Department to exercise their rights under this clause 8.2 and provide the Project Manager and/or the Department with any reasonable assistance requested by the Project Manager and/or the Department to use that hardware and software. 8.3 Conduct of audit and access The Project Manager will use its reasonable endeavours to ensure that: audits performed pursuant to clause 8.1; and the exercise of general rights granted by clause 8.2, do not unreasonably delay or disrupt in any material respect the PO and RTO s performance of their obligations under this Agreement or their business. Page 22

28 8.4 Costs Unless otherwise agreed in writing each party must bear its own costs of any review and/or audits conducted by the Project Manager of the Department under this clause Access and audit by other relevant parties The rights of the Project Manager and/or Department under clauses 8.2 to 8.2(iii) apply equally to the following persons and their delegates (referred to as relevant persons for the purposes of clauses 8.5 and 8.8): (ii) the Auditor-General; and Australian Information Commissioner, for the purposes of performing their respective statutory powers or functions. The PO or the RTO must do all things necessary to comply with the relevant persons requirements, notified under clause 8.2, provided that those requirements are legally enforceable and within the power of the relevant persons. 8.6 No reduction in responsibility The requirement for, and participation in, audits does not in any way reduce the POs and RTO s responsibility to perform their obligations under this Agreement. 8.7 Subcontractor requirements Each of the PO and RTO must ensure that any subcontract entered into for the purpose of this Agreement contains an equivalent clause granting the rights specific in this clause No restriction Nothing in this Agreement reduces, limits or restricts in anyway any function, power, right or entitlement of the relevant persons. The rights of the Department and the Project Manager under this Agreement are in addition to any other power, right or entitlement of the relevant persons. 8.9 Survival The obligations in this clause 8 survive the expiration or termination of this Agreement for a period of 7 years from the date of expiration or termination of this Agreement. Page 23

29 9. REPORTING* 9.1 Reporting For each Approved Project, the PO and the RTO must provide to the Project Manager: (ii) (iii) the relevant Reports on the dates as set out in Schedule 1; and any other written or verbal reports in relation to an Approved Project as requested in writing by the Project Manager to the PO and the RTO from time to time which are required to report to the Commonwealth under the Funding Agreement; and any written or verbal reports in relation to the Project as agreed between the parties or as reasonably required by the Project Manager. The PO and RTO each acknowledge that the Project Manager may from time to time require the PO and/or RTO to provide ad hoc written or other reports, including but not limited to reports relating to financial matters, in relation to the Approved Project and Program and the PO and/or RTO must comply with any such request. 9.2 Format and content of reports The RTO and the PO must ensure that each Report provided by them under clause 9.1 is in the format required by the Project Manager and includes all information required by the Project Manager from time to time. The Project Manager may require the re-submission of any Report if the Project Manager determines that the Report does not include or sufficiently cover all the necessary content. The RTO or the PO (as relevant) must re-submit any such Report to the satisfaction of the Project Manager. 10. MONITORING AND EVALUATION* 10.1 Progress Meetings The RTO and the PO must, if required by the Project Manager or the Department (or their delegates): liaise with and provide information to the Program Delegate and the Project Manager; and meet at the times and in the manner reasonably necessary to assist the Project Manager and the Department with any queries relating to the Approved Projects and the Program. Page 24

30 10.2 Evaluation In the event of any review or evaluation of the Program or the Approved Project, the PO and the RTO must within 10 days of a request being made by the Project Manager: provide all reasonable assistance and information reasonably required by the Department or the Project Manager; and respond to and comply with all reasonable requests or directions from Department or the Project Manager; and provide any information reasonably required by the Department or the Project Manager Notifications The PO and/or RTO must advise the Project Manager immediately if they become unable to undertake any of their obligations under this Agreement, including but not limited to being unable to: undertake the Approved Project; (ii) meet any Milestones set out in Schedule 1; (iii) (iv) continue to participate in the Program; or make contributions, whether financial or otherwise, and explain why. The PO must notify the Project Manager and the Applicable Regulator immediately in writing if the training provided to any Learner by the RTO is not satisfactory. If the PO notifies the Project Manager of such an event the PO and the RTO must: (ii) (iii) work with the Project Manager, the Department and any other party to develop a written plan of action to address any concerns with the training provided; allow the Project Manager to submit a written plan for approval to the Department to address concerns raised with the training and work with the Project Manager and make any changes which the Department reasonably require within a time frame determined by the Department and/or the Project Manager; and ensure that the plan that is approved by the Department is implemented within the timeframes determined in that written plan. Page 25

31 11. ACKNOWLEDGEMENT OF SUPPORT AND PUBLIC STATEMENTS 11.1 Acknowledgement of support The RTO and the PO must and must ensure that their Personnel, in all: publications, promotional and advertising materials relating to the Project; public announcements, events and activities in relation to the Program and/or the Approved Project; and any products, processes or inventions developed as a result of it; acknowledge the financial and other support received from the Department and the Project Manager (in relation to the Project), in the manner (if any) specified in Schedule 1 or as otherwise approved by the Department and the Project Manager in writing prior to its use Publicity (d) The Commonwealth and the Project Manager reserve the right to publicise and report on the awarding of Project Funds to the PO and the RTO, including the identity of the RTO or the PO, amount of Project Funds given to the PO and the RTO and the title and a brief description of the Approved Project in media releases, general announcements about the Program and annual reports, where it is considered appropriate. Prior to making any public announcement in connection with this Agreement or any transaction contemplated by it, the PO and the RTO must obtain the Project Manager s written agreement to the announcement, except if required by Law or a regulatory body (including a relevant stock exchange). If the PO and/or the RTO is required by Law or a regulatory body to make a public announcement in connection with this Agreement or any transaction contemplated by this Agreement, the PO and RTO must, to the extent practicable, first consult with and take into account the reasonable requirements of the Project Manager and/or Department. The PO and the RTO must provide all reasonable assistance to the Project Manager in promoting the Approved Project if and when requested to do so by the Project Manager. 12. WARRANTIES 12.1 Warranties by PO The PO represents and warrants that: Page 26