Centre for Australian National Biodiversity Research
FOR THE ESTABLISHMENT AND OPERATION OF
THE CENTRE FOR PLANT BIODIVERSITY RESEARCH
THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE
COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION
TABLE OF PROVISIONS
Part A: Introduction
1. Definitions and Interpretation
Part B: Establishing the Centre
2. Establishment of Joint Venture
2.A Transition arrangements.
3. Objectives of the Centre
4. Major Covenants
5. Term of the Centre
6. Location of Activities and Access
Part C: Organising the Centre
7. Management Structure
8. Composition of the Board
9. Functions and Powers of the Board
11. Executive Assistant
12. Advisory Committees
13. Executive Committee
Part D: Managing the Resources
16. Centre Agent and Account
17. Separate Accounting of the Parties
Part E: Research and Training
20. Seconded Personnel
Part F: Outcomes and Results
21. Background Intellectual Property
22. Centre Intellectual Property
23. Commercialisation of Centre Intellectual Property
24. Equity in the Centre
Part G: Protecting the Research
26. Publications and Public Announcements
Part H: Allocation of Risk
27. Mutual Indemnities
Part I: Changing or Terminating the Relationship
29. Retirement and Expulsion
31. New Members
34. Change of Status
Part J: Conflicts and Differences of Opinion
35. Conflict of Interest
36. Settlement of Disputes
Part K: Other Matters
38. Force Majeure
39. Clause Severance
41. Governing Law
42. Use of Names and Logo
43. Goods and Services Tax
45. Entire Agreement
TABLE OF SCHEDULES
Schedule A Contributions
Schedule B Premises and Equipment
Schedule C Seconded Personnel
Schedule D Activities and Programs
Schedule E Budgets
THIS AGREEMENT is made on 14 April 2000
THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE, a body corporate established by the National Parks and Wildlife Conservation Act, 1975 and to be continued in existence by the Environment Protection and Biodiversity Conservation Act 1999 as a body corporate by the name Director of National Parks ("DNP").
COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION, a body corporate established by the Science and Industry Research Act, 1949 through its Division of Plant Industry ("CSIRO")
A. Under agreements dated 22 November 1993 and 28 April 1998 (First Centre Agreement) the Parties were participants in an unincorporated joint venture known as the Centre for Plant Biodiversity Research and Australian National Herbarium, which terminated on 31 December 1999.
B. The Parties wish to continue the joint venture to encourage and pursue the performance of co-operative research in the field of plant biodiversity and to create an enhanced herbarium capability.
C. The Parties have agreed to carry out the joint venture under the name "The Centre for Plant Biodiversity Research".
D. The Parties have agreed between themselves that the activities of the Centre are to be regulated upon the terms and conditions set out in this Agreement.
NOW IT IS AGREED AS FOLLOWS:
PART A: INTRODUCTION
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless a contrary intention appears from the context, the following definitions shall apply:
"Account" means the account established under clause 16.2;
"Activities" means the research, curatorial, informative, educational and commercial activities of the Centre specified in Schedule D and includes the Programs;
"Annual Contribution", in relation to a Party, means that part of the Party's Contribution to be made available to the Centre in a particular Financial Year as determined under clause 15.4, and "Annual Contributions" means the aggregate of the Annual Contribution of each of the Parties;
"Asset" means an item of real or personal property but does not include Intellectual Property;
"Background Intellectual Property" means that Intellectual Property specified in Schedule A which is made available for the Activities by a Party, at the Commencement Date or during the Term of the Centre, and which has been adequately identified by that Party before being so made available;
"Board" means the Board of the Centre established under clause 8;
"Budget" means the annual budget for the Centre prepared and approved under clause 14;
"Centre" means the Centre for Plant Biodiversity Research including the Australian National Herbarium;
"Centre Agent" means the Party or other person appointed by the Parties under clause 16;
"Centre Intellectual Property" means Intellectual Property developed as a result of the Activities;
"Centre Resources" means the resources made available to the Centre, including the Contributions and any resources provided by third parties;
"Commencement Date" means 1 January 2000;
"Commercialise" in relation to Intellectual Property means to develop, manufacture, use, sell, offer to sell or hire the Intellectual Property or, in respect of a product resulting from that Commercialisation, to use, manufacture, hire, sell or otherwise dispose of the product, or keep it for the purpose of doing any of these things or permit or license any other person to do any of these things and "Commercialisation" shall be similarly construed;
"Confidential Information" means all trade secrets and know-how, financial information and other commercially valuable information of whatever description and in whatever form (whether written or oral, visible or invisible) but excludes the interpretation, analysis and application of general information in the public domain;
"Contribution", in relation to a Party, means all of the monies, Assets, Seconded Personnel, Premises, Equipment and services to be contributed by the Party to the Centre, but does not include any Intellectual Property, and "Contributions" means the aggregate of the Contribution of each of the Parties;
"Director" means the director of the Centre appointed under clause 10 ;
"Equipment" means the equipment specified in Schedule B to be made available by the Parties as part of the Contributions;
"Executive Assistant" means the person appointed to act as executive assistant of the Centre under clause 11;
"Executive Committee" means the executive committee of the Centre appointed under clause 13;
"Financial Year" means a period of twelve months or part thereof ending on 30 June;
"Intellectual Property" includes all copyright and neighboring rights, and all rights in relation to inventions, plant varieties, registered and unregistered trade marks (including service marks), registered designs, Confidential Information and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
"Objectives of the Centre" means the objectives listed in clause 3;
"Party" means a party to this Agreement at the Commencement Date their heirs, permitted assigns and successors and includes any person admitted to be a new member of the joint venture forming the Centre under clause 31;
"Patent" means any copyright and/or any plant variety and/or patent application arising from the Activities filed in Australia or in any foreign jurisdiction including any and all continuations, continuations in part or divisions thereof or any substitute applications thereof and for any and all plant variety rights and/or patents, granted or released as a result of such applications and all such copyrights subsisting;
"Performance Indicators" means those criteria for measuring whether the Centre is achieving its Objectives, as specified in the Strategic Plan
"Premises" means the premises specified in Schedule B to be made available by the Parties as part of the Contributions;
"Program" means a research, training or Commercialisation program specified in Schedule D to be carried out as part of the Activities;
"Program Leader" means a person appointed by the Board under clause 19 to act as leader of a Program;
"Publication" means those outputs presenting information in electronic, hardcopy and all other forms of media;
"Rules" means the enacting legislation and provisions thereunder, Memorandum and Articles of Association or any other form of provisions or policy statements governing the organisation and operation of a Party;
"Seconded Personnel" means the personnel of a Party to be seconded by it to the Centre as part of that Party's Contribution, as listed in Schedule C;
"Strategic Plan" means the plan developed by the Parties to reflect the strategic directions of the Centre over the next 5 year period, and incorporating performance indicators;
"Term of the Centre" means the period ascertained in accordance with clause 5.
1.2 In this Agreement, unless the context indicates to the contrary:
(a) the expression "person" includes an individual, a body corporate, a joint venture, a trust, an agency or other body;
(b) references to any Party to this Agreement shall include the Party's legal successor (including executors and administrators) and permitted assigns;
(c) words importing the singular shall include the plural (and vice versa) and words denoting a given gender shall include all other genders;
(d) clause headings and notes in square brackets are inserted for convenience only, and have no effect in limiting or extending the language of provisions, except for the purpose of rectifying any erroneous cross reference;
(e) references to any document or agreement shall be deemed to include references to such document or agreement as amended, novated, supplemented, varied or replaced from time to time;
(f) references to any legislation or to any provision of any legislation shall include any modification or re-enactment of such legislation or any legislative provision substituted for, and all legislation and statutory instruments issued under such legislation;
(g) all attachments to this Agreement shall form part of this Agreement;
(h) all monetary amounts referred to in this Agreement shall be deemed to be in Australian currency;
(i) all references to clauses are references to clauses in this Agreement.
PART B: ESTABLISHING THE CENTRE
2. ESTABLISHMENT OF JOINT VENTURE
2.1 The Parties hereby form and agree to constitute themselves in an unincorporated joint venture to be known as the Centre for Plant Biodiversity Research for the purpose of carrying out the Activities.
2.2 The Parties agree that:
(a) the rights, duties, obligations and liabilities of the Parties shall in every case, be several and not joint or joint and several;
(b) the relationship between the Parties is one of joint venturers and is limited to carrying out the Activities so that, except for clause 16, nothing contained in this Agreement constitutes any of them as agent, partner or trustee of any other of them, or creates any agency, partnership or trust for any purpose whatsoever;
(c) except as otherwise specifically provided in this Agreement, a Party does not have any authority or power to act for, or to create or assume any responsibility or obligation on behalf of, any other Party; and
(d) except as otherwise specifically provided in this Agreement, liabilities of the Centre incurred by or on behalf of all Parties for the purposes of the Activities shall be incurred severally and not jointly by each Party in equal shares.
2A TRANSITION ARRANGEMENTS
2A.1 At the Commencement Date all funds in the account maintained by the Centre Agent under the First Centre Agreement will become funds available to the Centre and will be applied to the Activities of the Centre.
2A.2 In relation to jointly owned Centre Intellectual Property arising from the activities under the First Centre Agreement ("First Centre IP") the Parties agree:
2A.3 In relation to assets acquired by the Centre arising from the activities under the First Centre Agreement the Parties agree:
3. OBJECTIVES OF THE CENTRE
3.1 The objectives of the Centre are:
(a) to create be a National Centre of research excellence in the fields of plant systematics and conservation biology, as a basis for conservation and sustainable management and use of Australian vegetation;
(b) to develop and manage scientific collections of Australian and related floras as the Australian National Herbarium, a permanent record of Australian plant diversity, and as a resource for research on these floras, and to provide the scientific authenticity of the ANBG.;
(c) to provide a national focus for and play a role in national botanical database management, and to represent and promote Australia internationally within the botanical database management field;
(d) to pursue research, education and training relevant to Centre programs and objectives;
- to ensure that the two parties add value to each other and the Centre, through their differing backgrounds and disciplines, and, through the Centre, serve the Parent Bodies and stakeholders, including the Living Collections of the Parties; and
- to maximise the benefits flowing from applications of Centre Intellectual Property.
4. MAJOR COVENANTS
4.1 Each Party covenants and agrees with each other Party:
(a) to diligently conduct the Activities in accordance with good scientific, academic, commercial and industrial practice and observe and perform its obligations and commitments set out in this Agreement;
(b) to keep each other Party informed about new research opportunities within the scope of the Activities known to Seconded Personnel (subject to third party obligations of confidence) which could be undertaken as part of the Activities;
(c) to make the Centre and its role widely known within each Party's organisation, with the aim of encouraging all relevant Activities to be undertaken in connection with the Centre and not independently;
(d) to provide its Contribution to the Centre as specified in Schedule A and in accordance with the terms of this Agreement;
(e) to make available Background Intellectual Property in accordance with the terms of this Agreement;
(f) not to do or cause or permit to be done any act, matter or thing whereby any Party's rights to Intellectual Property could be in any way jeopardised;
(g) not to use any of the Contributions or other cash Centre Resources for any purpose other than to carry out the Activities; and
(h) that it shall operate within its own Rules when carrying out the Activities and that it shall not impose an obligation on another Party to carry out Activities which may be contrary to that Party's Rules.
4.2 Each Party covenants with the other Parties that it will do all things necessary and procure that its Seconded Personnel do all things necessary to ensure that the Centre Resources are applied only towards establishing and operating the Centre for the purposes of the Objectives of the Centre and the performance of the Activities in accordance with this Agreement.
4.3 Notwithstanding the above, each Party reserves the unrestricted right to continue with or engage in research or training outside the Activities without consulting the other Parties and to retain all benefits arising from such research.
5. TERM OF THE CENTRE
5.1 This Agreement shall commence operation on the Commencement Date and, subject to clause 29, shall remain in force until 31 December 2009 or until the Parties by written resolution agree to terminate the Centre, whichever first occurs.
6. LOCATION OF ACTIVITIES AND ACCESS
6.1 The Activities shall be conducted at the Premises and with the Equipment specified by the Parties in relation to each of those Activities in Schedule B.
6.2 Each Party ("the Host") shall at all reasonable times give to any other Party or its Seconded Personnel ("the Visitor") access to Premises occupied by the Host where the Activities or any part of them are to be carried out.
6.3 Notwithstanding clause 6.2, the Host may require as a condition of such access that the Visitor complies with all reasonable directions and procedures relating to occupational heath and safety and security in effect at or relating to those Premises or in regard to that Equipment as notified by the Host.
6.4 Each Party retains ownership of the Premises and Equipment it contributes to the Activities.
6.5 Assets purchased by the Centre from Annual Contribution by the Parties shall be owned by the Parties as tenants in common in accordance with Clause 188.8.131.52 The Parties record their intention to work together and use reasonable endeavours to obtain funds for increased accommodation for the Centre staff and collections.
PART C: ORGANISING THE CENTRE
7. MANAGEMENT STRUCTURE
7.1 The Management Structure of the Centre shall consist of the Board, the Director, the Executive Committee, and any committee established by the Board from time to time.
8. COMPOSITION OF THE BOARD
8.1 The Parties shall establish the Board, which shall be comprised of two appropriately qualified representatives from each Party nominated in writing to all other Parties by the nominating Party, and the Director. The Board shall appoint an independent chairperson whose term, conditions of appointment and functions shall be determined by the Board.
At the Commencement Date the nominated Board representatives are:
CSIRO Dr J Peacock, Dr J Donnelly
DNP Mr S Hunter, Mr J Hicks
Independent Chairman Professor D Anderson
Director Dr J West
8.2 Each of the representatives of the Parties shall have one vote. In the case of a deadlock the independent chairperson shall have a casting vote.
8.3 The Director shall not have a vote.
8.4 Each Party may at any time and from time to time remove its representative on the Board and appoint another representative in that person's stead. Such appointment and removal shall be effective only upon receipt of notice in writing to the chairperson.
8.5 The Board must regulate its own proceedings (including mode of operation, frequency of meetings, minutes) and shall meet in person, by telephone or by video link-up and the like, provided however that the Board shall meet at all times necessary for it to discharge its obligations as set out in this Agreement in a proper and timely manner and at least once every six months commencing on the Commencement Date. The Board will meet whenever the Parties determine or when a meeting is called by a Board member provided that not less than fourteen days written notice has been given to all other Board members.
8.6 The amendment of the Objectives, the change of legal status of the Centre and the admission of a new party to the Centre shall require unanimous approval from the Board. All other resolutions to be decided by any meeting of the Board must be decided by majority of the voting rights of the representatives present.
8.7 Should a place on the Board become vacant, that position shall be replaced by the Party whom the vacating member represents, whether that vacancy is casual or otherwise.
8.8 Each Party may from time to time, and with the approval of the Board, appoint any person as an alternate member in place of its member, whether for a stated period or periods, or until the happening of a specified event, or from time to time, whenever by absence or illness or otherwise a member is unable to attend to duties as a member. The appointment shall be in writing, signed on behalf of the Party and a copy of the appointment shall be given to the Secretary, or other officer authorised by the Board, at least twenty-four hours before the meeting which the alternate is due to attend (or such other time as the Board permits). The appointment of the alternate shall be co-terminous with that of the member whom he or she represents. If the alternate fails to attend two consecutive meetings the chairperson may consult with the Party whom the alternate represents with a view to having that Party nominate another representative.
8.9 The quorum for the Board shall be the chairperson and two representatives, one from each Party.
8.10 Subject to sub-clause 8.11, any approval, decision or determination which the Board is competent to give or make may be submitted to the members of the Board for consideration and vote, without holding a meeting, and the vote shall be treated as a vote made at a meeting of the Board, PROVIDED THAT:
(a) each member is given written notice of such matter;
(b) each member or his alternate has a period of at least five days (or such other agreed period) after receiving notice of the matter to vote on the matter; and
(c) within such period, no member requests that such matter be considered at a meeting of the Board.
8.11 Whenever a matter is so submitted, each member shall vote by giving written notice of his vote to the Secretary, or other officer authorised by the Board, and any matter which receives approval of voting members holding not less than sixty percentum of the total voting rights shall be binding on each Party in the same manner as if the resolution had been passed at a meeting of the Board.
8.12 The written record of each decision made under clauses 8.10 and 8.11 shall be kept by the Secretary, or other officer authorised by the Board, and a copy shall be distributed to each member of the Board, as soon as practicable after the vote is taken.
9. FUNCTIONS AND POWERS OF THE BOARD
9.1 The Board shall control the policy, practices, management and operation of the Centre.
9.2 The Board shall, in addition to the general power of management conferred on it under clause 9.1, have the following specific powers:
(i) to determine and review Centre policy on all matters relating to the Objectives and Activities;
(ii) to determine or modify the Performance Indicators;
(iii) to use its best endeavours to ensure that the Centre and its Activities are carried on in accordance with the provisions of this Agreement and that the Objectives are achieved in accordance with the Strategic Plan;
(iv) to review and amend the strategies to be employed in achieving the Objectives and Activities in accordance with this Agreement;
(v) to give directions and instructions to the Director, and such other persons acting within the Centre as it deems fit;
(vi) to approve, at least annually, the changes to the Parties' Contributions in Schedule A;
(vii) to oversee and review the commitment of the Parties to the Centre;
(viii) to determine and implement procedures for the protection of and use by the Parties and third parties of Background Intellectual Property and Centre Intellectual Property;
(ix) to determine the strategy and process of Commercialisation of Centre Intellectual Property, and to assess its success having regard to the individual requirements of commercialisation and to determine the distribution of any royalties and licence fees derived from such Commercialisation; and
(x) to determine the Centre's research and education strategies;
(i) to appoint, remove and determine the functions of the Director in accordance with clause 10 and to recommend to the Party employing the Director that that Party consult with the other Parties concerning the Director's terms and conditions;
(ii) to appoint, remove and determine the functions of , the Program Leaders and the Centre Agent in accordance with this Agreement;
(iii) to appoint, remove and determine the role of such personnel and committees as from time to time may be required; and
(iv) to approve the secondment of personnel as required; and
(v) to determine in consultation with the Director which Party shall employ persons not currently employed by one of the Parties;
(i) to set budgetary priorities;
(ii) to receive and approve Budgets;
(iii) to establish protocols for the calculation and the value of a Party's in kind (non-cash) Contributions and to determine, following such protocols, the value of in kind (non-cash) and cash Contributions;
(iv) to approve any variation in the amount of the Parties' Contributions; and
(v) to authorise all expenditure on behalf of the Centre;
(i) to approve and terminate the Programs and to receive and consider reports from the Director concerning the performance of the Activities;
(ii) to promote co-operation between the Parties;
(iii) to determine issues of membership;
(iv) to delegate such powers of the Board to such persons as determined by the Board;
(v) to amend the Schedules, provided that any Party who is thereby required to make additional Contributions or whose Background Intellectual Property or Centre Intellectual Property may be affected has agreed to such amendment; and
(vi) to carry out such other functions as are ascribed to it under this Agreement or that the Parties may request it to undertake meet for the purposes objectives of the Centre.
9.3 Each Party warrants that its representatives are vested with the necessary power and authority to carry out their duties as a member of the Board as set out herein, including the execution of any agreements required to carry out the Activities.
9.4 Each Party acknowledges that its chosen representative is to be accountable to the Party by whom he or she is chosen with respect to that Party's performance in the Centre.
9.5 The authority of the Board will not extend to the following matters, the authority over which is retained by the Parties:
(a) the acquisition or disposal of any interest in land;
(b) external borrowing of funds whether secured or unsecured;
(c) the entry into any lease or hire of capital equipment; and
(d) career aspects (promotion, salary and other related matters) of staff of a Party, unless otherwise agreed.
9.6 The Board shall not act ultra vires of the enabling legislation of DNP or CSIRO.
9.7 In exercising its powers and functions under this clause the Board shall have regard to any relevant policy of the Parties as notified to the Board by each Party's representative(s) on the Board.9.8 A decision of the Board shall be binding on the Parties unless the decision is inconsistent with this Agreement, is expressly reserved to the Parties or any one of them under this Agreement or is one which requires any of the Parties to do or execute any act, document or thing which is ultra vires or conflicts with the internal procedures of that Party.
10.1 The Director of the Centre is to be appointed and removed by the Board and shall exercise his or her office for as long as the Board determines. At the Commencement Date the Director shall be Dr Judy West from CSIRO.
10.2 CSIRO or DNP agrees that one of them will appoint the Director as one of its employees for the term of the directorship and to fund the position of Director.
10.3 The Director may resign office by giving three month's written notice to the Board.
10.4 The Director's role is to:
(a) provide scientific leadership to and make every effort to ensure the scientific excellence of research by the Centre;
(b) ensure that the Activities are carried out in accordance with the Budget;
(c) facilitate collaboration between the Parties;
(d) report to the Board on all the Activities;
(e) represent, as authorised by the Board, the Centre in external dealings with others;
(f) approve temporary (less than one year) appointments to the Centre;
(g) facilitate and co-ordinate liaison between the Centre research personnel and the Parties;
(h) carry the primary financial delegation from the Board;
(i) supervise staff engaged in the Activities;
(j) work with the Program Leaders to develop and maintain the Programs;
(k) allocate the Contributions to each Program in accordance with the Budgets;
(l) manage the business support facilities of the Centre;
(m) ensure that the Parties' Contributions are provided to the Centre as pledged and that the record of Contributions in Schedules A, B and C is updated at least annually with the approval of the Board;
(n) prepare or arrange for the preparation of the Budget and separate budgets for each Activity;
(o) identify additional personnel requirements of the Centre and arrange for the secondment, release or appointment of the same subject to the approval of the Board;
(p) monitor the performance of the Centre in carrying out the Activities against the Performance Indicators, the Objectives and Budgets;
(q) monitor and assess the performance of the Centre Agent, Seconded Personnel, the Activities and the Centre generally against the Performance Indicators and report such performance to the Board as and when the Board determines;
(r) monitor and assess the performance of any third parties involved in the Commercialisation of Centre Intellectual Property against any performance criteria stipulated in the Commercialisation Agreement and report such performance to the Board as and when the Board determines;
(s) approve monetary reimbursement to the Centre Agent for expenses properly incurred by it in carrying out its functions under this Agreement and the Centre Agent;
(t) ensure that the Parties effect and maintain all usual insurances for reasonable amounts approved by the Board in relation to a Party's Assets and Equipment contributed to a Program, the conduct of a Program and the Seconded Personnel engaged in a Program;
(u) carry out the decisions of the Board;
(v) carry out such other duties as are ascribed to the Director under this Agreement;
(w) perform such other functions as are determined by the Board; and
(x) nominate an Acting Director from the senior seconded personnel to perform the duties of the Director in his absence for a period of up to 4 weeks.
10.5 The Director shall not be responsible to the Parties for any liability, loss, harm, damage, cost or expense (including legal fees) that the Parties may suffer, incur or sustain arising out of the Programs or the tasks of the Director in performing its duties or obligations under or by virtue of this Agreement, except to the extent that such liability, loss, harm, damage, cost or other expense arises from the Director's willful misconduct, bad faith or negligence.
10.6 The Parties hereby irrevocably and unconditionally indemnify and undertake and agree to keep indemnified and save harmless the Director from and against any and all liability, loss, harm, damage, cost or expense (including legal fees) that the Director may suffer, incur or sustain as a result of any suit, claim or demand brought or made against the Director and arising out of the activities of the Director in performing his or her duties or obligations as the Director under or by virtue of this Agreement except to the extent that such liability, loss, harm, damage, cost or expense arose from the Director's willful misconduct, bad faith or negligence.
11. EXECUTIVE ASSISTANT
11.1 The Director may appoint an Executive Assistant to carry out the secretarial requirements of the Board and the Centre and to carry out such other administrative functions as either the Director or the Board determines.11.2 The Party employing the Director shall be responsible for appointing one of its employees to a position of Executive Assistant.
11.3 Without limiting the generality of clause 11.1, an Executive Assistant appointed under that clause shall:
(a) in consultation with the Board's chairperson and the Director, give notice of, and prepare an agenda for, each Board meeting;
(b) prepare minutes in draft form of all meetings of the Board and circulate them to all representatives as soon as possible after the meeting has been held. Approval of minutes must take place at the next following meeting or at such other time as the Board determines; and
(c) notify the members of the Board of the next meeting.
12.1 The Board may appoint in consultation with the Director committees, comprising scientists eminent in disciplines relevant to the Activities, representatives of user organisations and other appointees as deemed appropriate by the Board.
13. EXECUTIVE COMMITTEE
13.1 The Board will establish an Executive Committee to conduct the day to day activities of the Centre.
13.2 The Committee will consist of:
(a) the Director;
(b) the Program Leaders and
(c) ex-officio appointments from DNP and CSIRO at the request of theas endorsed by the Director as appropriate.Board.
13.3 The Committee's primary responsibility will be to advise the Director on the following:
(a) implementation of decisions of the Board;
(b) the long-term planning of Centre Activities;
(c) managing day-to-day operations of the Centre;
(d) developing Centre policy for consideration by the Board;
(e) monitoring Centre Activities against the Strategic Plan and Performance Indicators;
(f) communication between the Director and Centre staff; and
(g) collaborating and liaising with third parties outside the Centre..
13.4 The decisions of the Executive Committee shall be advisory only and shall not bind the Director, the Board or the Parties.
13.5 The Executive Committee shall be presided over by the Director and shall meet once a month or at such other time as the Director determines.
13.6 All questions before the Executive Committee shall be decided by majority vote and the Director shall have a second or casting vote in the case of a deadlock.
13.7 Subject to this clause, the Executive Committee shall regulate its own proceedings (including mode of operation, frequency of meetings, minutes) and shall meet (whether in person, by telephone or video link-up or the like) provided however that the Executive Committee shall meet at all times necessary for it to discharge its obligations as set out in this Agreement in a proper and timely manner and at least once every three months commencing from the Commencement Date.
PART D: MANAGING THE RESOURCES
14.1 The Budget for the first Financial Year is specified in Schedule E;
14.2 Prior to the commencement of each subsequent Financial Year the Director together with the Parties shall prepare a draft Annual Contribution and Budget setting out the financial requirements for the carrying out of the Activities for that year.
14.3 The draft Annual Contribution and Budget shall be submitted to the Board for approval.
14.4 In approving the draft Budget, the Board shall determine, for the Financial Year in question -
(a) the allocation of Centre Resources to Programs;
(b) each Party's Annual Contribution [including cash and non-cash components]; and
(c) the Centre Resources to be made available to each Party in the Financial Year in question for the purpose of carrying out the Activities.
14.5 Each Partys Annual Contribution during the first six month period of the Term of the Centre is set out in Schedule A. Each Partys Annual Contribution for subsequent years will be as approved by the Board.
14.6 The Budget during the first six month period of the Term of the Centre is set out in Schedule E. The Budget for subsequent years will be as approved by the Board.
15.1 Each Party covenants and agrees with the other Parties to pay to the Centre Agent the cash component of its Annual Contribution and to apply to the Activities the in-kind component of its Annual Contribution in accordance with the Budget and in the manner determined by the Board.
16. CENTRE AGENT AND ACCOUNT
16.1 The Board shall appoint a Party or other person to act as Centre Agent for the purposes set forth in this clause 16, and for such other purposes as the Board may determine at the time of appointment.
16.2 At Commencement Date the Centre Agent shall be CSIRO through its Division of Plant Industry.
16.3 The Centre Agent shall establish and oversee the operation of a bank account for the Centre.
16.4 It shall be the responsibility of the Centre Agent to consolidate the accounting information provided to it by the Parties in accordance with clause 17.2.
16.5 The Centre Agent shall provide to the Director, at least on a monthly basis, detailed budget versus expenditure reporting as determined by the Director.
16.6 The Centre Agent shall seek and accept from each Party the cash component of its Annual Contribution, receive all other income of the Centre, and credit those amounts, and any interest earned thereon, to the Account.
16.7 The Centre Agent shall disburse moneys credited to the Account as follows:
(a) income tied to a grant or a particular contract with a third party shall be administered for the purposes of that grant or contract as part of the Activities , which may include the deduction of an amount representing a contribution to the cost of providing facilities used in the project supported by the grant or contract;
(b) income in the form of royalties or licence fees derived from the Commercialisation of Centre Intellectual Property shall be distributed in the manner specified by the Board; and
(c) any other income shall be used for the Activities.
16.8 The Centre Agent may, subject to the terms of its appointment, draw upon the Account to meet its reasonable expenses and agreed remuneration, and such drawings shall be deemed to be expenses incurred in the performance of the Activities.
16.9 The Centre Agent may invest, in accordance with Treasury guidelines, any Account funds which are not immediately required by the Centre and shall deposit all interest so earned in the Account.
16.10 The Centre Agent shall manage the income and expenditure of the Centre in accordance with proper accounting practice.
16.11 The Centre Agent shall not be deemed to be an agent for any of the Parties except for the purposes contemplated by this clause 16 nor shall any inference of partnership be drawn between the Centre Agent and the Parties.
16.12 Nothing in this Agreement shall be taken to in any way authorise or permit the Centre Agent to incur any liabilities or undertake any obligations on behalf of or in the names of any of the Parties except as specifically authorised herein.
17. SEPARATE ACCOUNTING OF THE PARTIES
17.1 Each Party shall be responsible for keeping separate financial accounts which shall record:
(a) the cash component of its Contribution and expenditure associated with its participation in the Centre; and
(b) all monies which are received by that Party directly from a third party for the Activities; and
(c) all expenditure incurred by it in carrying out the Activities.
17.2 Each Party shall provide the Centre Agent within fourteen days of a written request being received from the Centre Agent all necessary information from the above accounts for the Centre Agent to comply with any financial reporting requirements to which the Centre may be subject.
18.1 This clause applies to any Asset:
(a) included as a part of the Annual Contribution of a Party to the Centre; or
(b) provided to a Party as part of the non-cash resources made available to that Party.
18.2 Unless otherwise agreed between the Parties, an Asset to which this clause 18 applies shall be or remain vested in the Party concerned.
18.3 Unless otherwise agreed between the Parties an Asset shall remain at the premises of the Party having title to the Asset.
18.4 During the Term of the Centre the Party having title to an Asset shall not charge, mortgage, pledge or otherwise encumber the Asset.
18.5 During the Term of the Centre the Party having title to an Asset shall be responsible for insurance, maintenance and any other costs and liabilities associated with the Asset. However, the Board may treat those costs or part thereof as part of the Annual Contribution of the Party.
18.6 During the Term of the Centre the Party having title to an Asset shall make the Asset available for the Activities.
PART E: PROGRAMS AND SECONDED PERSONNEL
19.1 The Parties agree to carry out the Programs, which shall be directed towards the achievement of the Objectives of the Centre.
19.2 Each Program shall be managed by a Program Leader appointed by the Board from among the Seconded Personnel.
19.3 Each Program Leader shall report to the Director and shall be responsible for:
(a) the day to day management of their Program;
(b) the total performance of the Program including the Program's co-operative functions, scientific and financial management;
(c) the recognition of current and emerging issues relevant to the Program, and preparation of proposals to address them;
(d) carrying out the functions ascribed to them in this Agreement; and
(e) carrying out such additional functions as the Board may determine.
20. SECONDED PERSONNEL
20.1 Each Party covenants and agrees with the other Parties to second to the Centre its Seconded Personnel for such time and for such purposes as determined by the Board.
20.2 Seconded Personnel of each Party shall remain subject to the terms and conditions of employment of that Party and shall be replaced if recommended by the Board.20.3 DNP warrants that where its Seconded Personnel are or include employees provided or made available to the Director by or under an arrangement with a third party the DNP has the approval of that other party to second these employees to the Centre for the purposes of and in accordance with this Agreement..
20.4 Each Party covenants and undertakes to procure that Centre Intellectual Property created by any of its Seconded Personnel shall be owned and dealt with according to the provisions of this Agreement.
20.5 A Party may withdraw from the Centre any of its Seconded Personnel following consultation with the other Parties and upon giving reasonable notice to the Board, provided it replaces such personnel with a person or persons (as the case may be) acceptable to the Board.
20.6 Should the Centre require the services of persons not presently employed by any of the Parties, such persons shall be retained under arrangements determined by the Board. Unless otherwise directed by the Board, persons so retained shall be employed by DNP or CSIRO upon terms and conditions set by that Party
20.7 Any persons engaged under clause 20.6 and any work performed by such persons for the purposes of the Centre shall be considered to be the Contribution of the Party employing such persons.
PART F: OUTCOMES AND RESULTS
21. BACKGROUND INTELLECTUAL PROPERTY
21.1 From time to time during the Term of the Centre, a Party may make Background Intellectual Property available for the Activities, on such terms and conditions as it thinks fit.
21.2 Each of the Parties represents and warrants to each other that:
(a) it is the owner of and is entitled to use the Background Intellectual Property which it makes available for the Activities;
(b) except to the extent disclosed to the remaining Parties at the time of making available such Background Intellectual Property, that Background Intellectual Property is unencumbered; and
(c) it will not encumber or otherwise deal with, dispose of or Commercialise that Background Intellectual Property, during such time as the Board determines it is necessary for the performance of the Activities except with the prior approval of the Board (such approval not to be unreasonably withheld).
21.3 The Parties acknowledge and agree that the Background Intellectual Property shall remain the property of the Party which made the Background Intellectual Property available for the Activities.
21.4 The Director shall maintain a register recording such Background Intellectual Property as is made available by a Party for a Program. It shall be the responsibility of the member or members of the Board representing that Party to approve the register and any amendments to it.
21.5 Subject to clause 21.1, to strict compliance with this Agreement and a Party not prejudicing the ability of the owner of Background Intellectual Property to seek appropriate protection for Background Intellectual Property, each Party shall have a non-exclusive royalty-free right to use any other Party's Background Intellectual Property for the purposes of the Activities other than Commercialisation, as approved by the Board.
21.6 A Party is free to use its Background Intellectual Property to conduct research or training outside the scope of the Activities.
21.7 Where a Party who intends to conduct research or training outside the Activities wishes to use Background Intellectual Property owned by another Party, the Party so wishing to use another Party's Background Intellectual Property shall only be permitted to do so subject to obtaining a non-exclusive licence upon terms agreed by the Party owning that Background Intellectual Property.
21.8 The Parties agree that they will take all necessary steps to protect Background Intellectual Property and give each other prompt notice of any infringement of Background Intellectual Property which comes to their attention. Each Party agrees to give all Parties who own such Background Intellectual Property all assistance which they may reasonably require in order to protect that Party's Background Intellectual Property, provided that the Parties requiring such assistance indemnify the Party providing the assistance for all reasonable costs and expenses of so doing.
22. CENTRE INTELLECTUAL PROPERTY
22.1 Subject to this clause 22 and clause 24, all Centre Intellectual Property developed by CSIRO shall be owned by CSIRO. All Centre Intellectual Property developed jointly by CSIRO and DNP or by persons retained under clause 20.6 shall be owned by the Parties as tenants in common in equal shares. All other Centre Intellectual Property shall be owned by DNP.
22.2 No Party shall deal with, Commercialise, dispose of or encumber any interest which it might hold in Centre Intellectual Property, except as authorised in this Agreement or with the written consent of all other Parties.
22.3 Each Party shall co-operate with each other Party and promptly do all acts and things and execute all documents which may be necessary for the purpose of vesting ownership of the Centre Intellectual Property in the Parties as contemplated by clause 22.1.
22.4 Each Party shall upon request from either the Director or from any other Party provide to the Director or that other Party information regarding Centre Intellectual Property and shall give to the Director or other Party access to all records and information in its possession related to the Centre Intellectual Property.
22.5 The Parties shall use their best efforts to ensure that their respective employees (including Seconded Personnel), agents, sub-contractors, postgraduate students under their supervision or other persons participating in the Activities:
(a) shall identify Centre Intellectual Property generated or developed by them;
(b) shall promptly communicate details of it to the relevant Program Leader; and
(c) shall promptly do all acts and things and execute all documents necessary for the purpose of vesting ownership of the Centre Intellectual Property in the Parties in equal shares and to otherwise give effect to the intentions of the Parties as set out in clauses 21, 22 and 23.
22.6 Subject to a Party not prejudicing the ability of the Director to seek appropriate protection for Centre Intellectual Property, each Party shall have a non-exclusive royalty-free right to use the Centre Intellectual Property for the purposes of the Activities other than Commercialisation, as approved by the Board.
22.7 Where a Party who intends to conduct research or training outside the Activities wishes to use Centre Intellectual Property of which it does not have exclusive ownership, the Party so wishing to use the Centre Intellectual Property shall only be permitted to do so subject to obtaining a non-exclusive licence upon terms agreed by the other Parties.
22.8 The Parties shall give each other prompt notice of any infringement of Centre Intellectual Property which comes to their attention and each Party agrees to give a Party all assistance which it may reasonably require in order to protect that Party's interest in Centre Intellectual Property, provided that the Party requiring such assistance indemnifies the Party providing the assistance for all reasonable costs and expenses of so doing.
22.9 Subject to clause 21 and clause 22.6, where a Party outside the Activities develops further Intellectual Property based on Centre Intellectual Property or on Background Intellectual Property, that further Intellectual Property shall remain the property of the developing Party. Should the developing Party require a licence from the owners of Background Intellectual Property and/or the owners of Centre Intellectual Property in order for the developing Party to Commercialise its further Intellectual Property, the developing Party shall obtain a licence from the owners of Background Intellectual Property and/or Centre Intellectual Property on terms agreed between the owners of that Background Intellectual Property and/or Centre Intellectual Property.
22.10 If a Program Leader considers that a particular development arising from that Program may be patentable or the subject of other forms of Intellectual Property protection, the Program Leader shall promptly communicate details of that development to the Executive Committee for referral to the Board through the Director.
22.11 The Board shall decide in consultation with the Parties whether the development warrants pursuing Patent protection, or other forms of Intellectual Property protection, and if it does, in which countries protection should be sought.
22.12 Unless otherwise agreed by the Board, the Director is to apply for, maintain and prosecute any form of Intellectual Property protection decided upon under clause 22.11.
22.13 If patenting or other registrable forms of Intellectual Property protection of Centre Intellectual Property is pursued, it is to be in the names of the Party or Parties by whom it is owned, as set out in clause 22.1.
22.14 The obligations of Parties to apply for Patents or any other Intellectual Property rights in relation to Centre Intellectual Property are subject to the following:
(a) it is the responsibility of the Executive Committee to advise the Board of any innovative developments arising from the Activities which the Executive Committee believes may be patentable or otherwise protectable or which may constitute Centre Intellectual Property;
(b) none of the Parties owning patentable and other protectable Background Intellectual Property and/or Centre Intellectual Property shall unreasonably abandon or allow to lapse any such Patent or other Intellectual Property applications or grants without the prior written consent of the Board; and
(c) if the Board decides not to obtain Patent or other Intellectual Property rights in relation to Background Intellectual Property and/or Centre Intellectual Property in a particular country the Party who owns the Background Intellectual Property or the Centre Intellectual Property may obtain and maintain those rights in those countries at its own expense and Commercialise the Background Intellectual Property and/or the Centre Intellectual Property in those countries at its own expense and for its own benefit without having to account to the Parties for any benefits it receives as a result of the Commercialisation of that Background Intellectual Property and/or Centre Intellectual Property.
22.15 Subject to clause 22.14, the Account may be drawn upon to meet all costs associated with applying for, maintaining and prosecuting Patent or any other form of Intellectual Property protection associated with Centre Intellectual Property and the application, maintenance and prosecution of any actions which may be associated with any such Intellectual Property and such drawings shall be deemed to be expenses incurred in the performance of the Activities.
23. COMMERCIALISATION OF CENTRE INTELLECTUAL PROPERTY
23.1 Where a Party is the sole owner of Centre Intellectual Property that Party may propose a commercialisation strategy to the Board, and if the strategy is a reasonable one, it shall be adopted by the Board.
23.2 Where the Centre Intellectual Property is jointly owned by the Parties, the Board shall be responsible for the Commercialisation of Centre Intellectual Property, and in particular:
(a) marketing the Centre Intellectual Property to industry; and
(b) seeking potential licensees of the Centre Intellectual Property and other users of the Centre Intellectual Property for commercial purposes.
23.3 Where possible the commercialisation strategy will attempt to maximise returns by taking into account the putting together of technology packages made up of Centre Intellectual Property and Background Intellectual Property.
23.4 Subject to the terms of this Agreement, the Centre Agent shall pay into the Account any royalties and/or licence fees derived by the Centre from Commercialisation of the Centre Intellectual Property.
24. EQUITY IN THE CENTRE
24.1 CSIRO and DNP shall each hold one half of the equity in the Centre. Subject to this Contract, all herbarium specimens acquired by the Centre shall be owned by the Parties as tenants in common in equal shares. All other Assets acquired by the Centre shall be owned by the parties as tenants in common in proportion to the cash component of each Party's Annual Contribution in relation to the total cash contribution to the Centre Account by the Parties.
PART G: PROTECTING THE RESEARCH
25.1 Each Party agrees that it will keep secret and confidential and not disclose:
(a) without the prior written consent of the Board (such consent not to be unreasonably withheld) its Background Confidential Information or any part of it;
(b) without the prior written consent of the Board, any Centre Confidential Information or any part of it; or
(c) any Background Confidential Information of another Party or any part of it, to any other legal entity.
25.2 The obligations imposed on a Party by this clause shall not apply to data or Confidential Information which:
(a) prior to disclosure is in the public domain or in published literature or subsequent to disclosure to the Party becomes part of the public domain or is published other than as a result of an unauthorised act or failure to act by that Party;
(b) is received by a Party from a third party without any obligation to hold in confidence and which has not been obtained by that third party directly or indirectly from either Party;
(c) is independently developed by an employee or officer engaged by the Party owing the obligation of confidentiality whilst having no knowledge of the other Party's Confidential Information; or
(d) the Party claiming confidentiality has identified in writing as being released from the obligation of confidentiality;
25.3 Any combination of Confidential Information shall not be deemed to be in the public domain merely because the Confidential Information is in a Party's possession.
25.4 Confidential Information shall not be deemed to be in the public domain merely because it is embraced by a general disclosure in the public domain.
25.5 The onus of showing that any of the above exceptions apply will rest upon the receiving Party.
25.6 Each Party shall ensure that:25.7 The obligations of confidentiality imposed on a Party shall survive termination of this Agreement or the Party's expulsion or retirement from the Centre and shall continue for a period of five years from the date of such termination, expulsion or retirement.
(a) the Confidential Information is not disclosed to any of its officers, employees, student or agents (including Seconded Personnel and representatives on the Board) other than those who are engaged in the Activities;
(b) its employees to whom Confidential Information is disclosed under clause 25.6(a) and aware of and comply with the obligations of confidentiality as though parties to this Agreement; and
(c) any of the above mentioned employees who cease to be employed by the Party shall continue to be bound by such obligations of confidentiality.
26. PUBLICATIONS AND PUBLIC ANNOUNCEMENTS
26.1 Subject to this clause 26, a Party has the right to publish the results of its own work (publications to include institutional affiliations of authors as well as their affiliation with the Centre).
26.2 The Parties shall use their best endeavours to ensure nothing is done which might prejudice the subsistence or Commercialisation of Background Intellectual Property or Centre Intellectual Property, and in particular the Parties shall not publish or disclose any such Intellectual Property to any third person so as to preclude the grant of a Patent or cause the loss of Intellectual Property in any Confidential Information.
26.3 Notwithstanding clause 26.2, the Parties acknowledge that the dissemination of knowledge is an important function of the Centre and that publication of books, papers, theses and other forms of dissemination of information is encouraged.
26.4 Prior to any publication the Party wishing to publish material ("the Requesting Party") must forward a request in writing to the Director seeking permission to publish the material.26.5 The Director must within fourteen days of receipt of any such request notify the Requesting Party whether permission has been granted or delayed.
26.6 If the Director determines in his/her absolute discretion that the benefits of publication outweigh the potential loss of commercially valuable Intellectual Property rights, then he will inform the Requesting Party that permission to publish has been granted.
26.7 All material to which clause 26.6 applies shall be published in the name of the Centre or in the joint names of the Centre and the Party which developed the Intellectual Property, as agreed between the Director and the Party.
26.8 No material which involves Background Intellectual Property shall be published without the written consent of the Party to whom that Intellectual Property belongs.
26.9 If the Director determines in his/her absolute discretion that the benefits of publication do not outweigh the potential loss of commercially valuable Intellectual Property rights then he/she will either:
(a) suggest alterations to the publication so that it does not disclose information affecting the commercially valuable Intellectual Property rights as aforesaid; or
(b) if altering the publication is impractical, delay publication for a stipulated period not exceeding twelve months from the date of the request.
26.10 If the Director fails to notify the Requesting Party of his/her decision within one month of receipt of the Requesting Party's request, then the Requesting Party will be entitled to proceed to publication.
26.11 A Party must not make any public announcement in relation to the Centre or the contents of this Agreement without obtaining the prior approval of the Board.
PART H: ALLOCATION OF RISK
27. MUTUAL INDEMNITIES
27.1 Each Party ("the indemnitor") hereby irrevocably and unconditionally indemnifies and agrees to keep indemnified each of the other Parties and their respective directors, officers, employees, students, agents and representatives ("the indemnitee") from and against any and all liability, loss, harm, damage, cost or expense (including legal fees) howsoever arising that the indemnitee may suffer, incur or sustain as a result of any act or omission of, or any purported assumption of any obligation or responsibility by, the indemnitor or any of its directors, officers, employees, students, agents or representatives, done or omitted to be done, or undertaken, or apparently done or omitted to be done or undertaken, on behalf of the indemnitee in connection with the Centre and not authorised by or under this Agreement.
27.2 If any Party becomes liable to any other person for any tort, statutory offence or infringement of such person's Intellectual Property committed during the Term, except when such liability arises due to the negligence or default of such Party or any of its officers, directors, employees, agents or representatives, each Party shall duly discharge its proportion of such liability according to its Contribution and shall indemnify and account to each other Party to the extent that it does not do so.
28.1 Each Party shall effect and maintain adequate insurance to cover its participation in the Centre and such insurance shall cover that Party's WorkCare (or equivalent) liabilities, third party liabilities, occupier's liability, comprehensive motor vehicle insurance and any other item of insurance deemed necessary by that Party to indemnify itself against any loss or damage which it may suffer or cause due to its participation in the Centre.
28.2 A Party may act as its own insurer provided it receives the prior written consent of all the other Parties.
28.3 Subject to clause 29.2, prior to the execution of this Agreement, each Party shall provide to the Director, as soon as possible after the Commencement Date, a Statement of Insurance stating the date of policy expiry and a Certificate of Currency. Annually thereafter each Party shall provide the Director with a Certificate of Currency of its relevant insurance policies within fourteen days of their renewal.
PART I: CHANGING OR TERMINATING THE RELATIONSHIP
29. RETIREMENT AND EXPULSION
29.1 Subject to the provisions of this clause 29:
(a) a Party may retire from the Centre by giving twelve months' notice to each other Party; and
(b) a Party may be expelled from the Centre by the direction of all members of the Board other than the representative of the Party to be expelled provided Due Cause has been shown.
29.2 For purposes of clause 29.1, "Due Cause" shall include:
(a) failure to make Contributions when required;
(b) failure to remedy a conflict of interest to the satisfaction of the Board;
(c) unauthorised disclosure of Confidential Information;
(d) unauthorised use or Commercialisation of Intellectual Property;
(e) proposed changes to Seconded Personnel that are likely to adversely affect the Centre's performance;
(f) breach of any material condition of this Agreement;
(g) becoming insolvent, bankrupt or being subject to the appointment of a mortgagee, a receiver or manager or an investigator to investigate its affairs, or making any arrangement or composition for the benefit of creditors or being the subject of winding up proceedings; and
(h) such other matters as the members of the Board other than the representative(s) of the Party to be expelled may by unanimous decision declare to be a due cause.
29.3 If a Party is expelled or retires from the Centre:
(a) it shall be relieved of its obligation to make further Contributions;
(b) it shall be required to assign its rights under this Agreement and any other related agreement to the remaining Parties (if any) in the manner and upon the terms directed by the Board and (except in the case of expulsion) shall be entitled to be paid by the remaining Parties the capital value of the interests being so assigned;
(c) it shall grant to the remaining Parties (if any) a royalty-free, non-exclusive licence to its Background Intellectual Property to the extent necessary to allow the remaining Parties to pursue the Activities other than Commercialisation;
(d) it shall undertake to grant the remaining Parties (if any) a non-exclusive licence to the Background Intellectual Property to the extent necessary to allow the Parties to Commercialise the Centre Intellectual Property, the terms of such licence to be agreed by that retired or expelled Party and the remaining Parties;
(e) it shall, except for the purposes of the remaining paragraphs of this sub-clause, cease to be a Party to this Agreement;
(f) such expulsion or retirement shall not affect the enforceability of any other obligations of that Party or rights against that Party accrued at that time; and
(g) such expulsion or retirement shall not relieve the Party of the obligations imposed upon it under this clause 29 and clauses 22, 25, 26, 27, 32 and 36.
29.4 Subject to clause 29.5, retirement or expulsion of any Party shall not relieve the remaining Parties of their obligations under this Agreement and they shall continue to carry on the Activities and perform the terms of this Agreement between them.
29.5 If there is only one remaining Party to this Agreement following the retirement or expulsion of a Party under clause 29.1, the Agreement shall be terminated.
30.1 This Agreement shall be binding upon and inure to the benefit of each of the Parties and their successors and permitted assigns. No Party shall sell, assign or otherwise dispose of any of its rights or obligations hereunder without the prior written consent of the other Party.
31. NEW MEMBERS
31.1 A person may be admitted as a new member of the joint venture forming the Centre in accordance with the reasonable directions of the Board. Without limiting the generality of the foregoing, such directions shall require the person to execute an agreement under which it, inter alia, agrees to be bound by the terms of this Agreement and any other related agreement, and its allocation of equity in the Centre. Upon execution of such agreement, the new person shall be deemed to be a Party for the purposes of this Agreement.
32.1 This Agreement shall terminate upon the first to occur of the following events:
(a) the expiration of the Term of the Centre in accordance with clause 5;
(b) the agreement by the Parties to terminate the Agreement; and
(c) the termination of the Agreement under clause 29.5.
32.2 Termination of the Agreement for any reason shall be without prejudice to the continuing enforceability of any rights or obligations of the Parties accrued at the time of termination.
32.3 Prior to termination of this Agreement or as soon as possible thereafter the Parties shall meet for the purpose of agreeing upon:
(a) future Commercialisation of Centre Intellectual Property and any necessary Background Intellectual Property; and
(b) the ownership of the Centre Intellectual Property;
(c) any change to the Parties' future obligations of secrecy with respect to Confidential Information and future obligations of insurance;
(d) the distribution of Assets held by the Centre; and
(e) any other matter not addressed in this Agreement but requiring resolution at that point in time.
Failing agreement on any of the above matters, such matters shall be resolved in accordance with clause 36 and clause 37.
32.4 Unless agreed otherwise under clause 32.3, upon termination of this Agreement the Parties shall continue to be bound by the obligations of confidentiality and insurance and the indemnities given under this Agreement (to the extent that these obligations are applicable to them).
32.5 A Party that has retired or has been expelled from the Centre under clause 29 shall still be deemed to be a Party for the purposes of this clause 32 and agrees to be so bound.
33.1 A Party's right to sub-contract the performance of any substantial part of the Activities shall be subject to the prior approval of the Board.
34. CHANGE OF STATUS
34.1 If at any time during the Term it is decided by the Parties that the Centre should change from an unincorporated joint venture to another form of legal entity, each Party shall have the opportunity to review its continuing involvement in the Centre.
34.2 Should a Party not agree to the Centre changing its status from one of unincorporated joint venture, such Party shall be entitled to retire from the Centre according to the provisions of clause 29 on such terms as are agreed to by the Parties.
PART J: CONFLICTS AND DIFFERENCES OF OPINION
35. CONFLICT OF INTEREST
35.1 Each Party must:
(a) disclose to the other Parties actual or potential conflicts of interest which may exist or might reasonably be thought to exist between the interests of the Party or its Seconded Personnel and the interests of the other Parties in the Centre;
(b) at the request of the other Parties or any of them, take such steps as are necessary and reasonable to remove any conflict of interest referred to in paragraph (a); and
(c) not carry on or be interested in any business or activity which may operate to the detriment of the Centre.
35.2 If a Party cannot remove a conflict of interest as required by this clause 35 then it may be expelled under clause 29.
35.3 Each Party warrants to the other Parties that to the best of its knowledge, at the Commencement Date no conflict of interest exists which is likely to affect the performance of its obligations under this Agreement.
36. SETTLEMENT OF DISPUTES
36.1 The Parties acknowledge that the Parties shall, without delay and in good faith, attempt to resolve any dispute or difference which may arise between them in relation to the Agreement prior to commencing arbitration proceedings under this Agreement.
36.2 Should any Party require resolution of a dispute or difference with another Party in relation to this Agreement it undertakes to do so in accordance with the succeeding provisions of this clause. Each Party acknowledges that the compliance with these provisions is a condition precedent to any entitlement to a claim, relief or remedy, whether by way of proceedings in a court of competent jurisdiction or by arbitration proceedings under this Agreement or otherwise in respect of such dispute or difference.
36.3 If any Party requires resolution of a dispute or difference:
(a) that Party must by Notice notify the Party causing the dispute that a dispute exists and forthwith submit such dispute or difference to the Board for resolution;
(b) if the Board is unable to resolve the dispute or difference within a reasonable time, a meeting shall be convened forthwith between senior representatives of the disputing Parties not being members of the Board for resolution of the dispute or difference; and
(c) if the dispute or difference is not resolved by the persons referred to in paragraph (b) above, within such time as they agree but not being more than sixty days, the provisions of clause 37 shall apply.
37.1 In the event of any dispute or difference arising between the Parties to this Agreement which can not be resolved between them in accordance with clause 36, and which does not impinge upon a question of law or call for the rectification of this Agreement, such dispute shall forthwith be referred for determination at Canberra in the Australian Capital Territory, by an arbitrator agreed on by the Parties to the dispute or difference. If such Parties are unable to agree upon an arbitrator the matter shall be dealt with in accordance with the laws relating to expedited commercial arbitration for the time being in force in the Australian Capital Territory.
PART K: OTHER MATTERS
38. FORCE MAJEURE
38.1 Where a Party is unable, wholly or in part, by reason of force majeure, to carry out any obligation under this Agreement, and that Party:
(a) gives each other Party prompt notice of that force majeure including reasonable particulars, and, in so far as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation;
(b) uses all possible diligence to remove that force majeure as quickly as possible,
that obligation is suspended so far as it is affected by force majeure during the continuance of that force majeure and that Party shall be allowed a reasonable extension of time to perform its obligations.
38.2 If after a period of six months, the force majeure has not ceased, the Parties shall meet in good faith to discuss the situation and endeavour to achieve a mutually satisfactory resolution to the problem.
38.3 The requirement that any force majeure must be removed with all possible diligence does not require the settlement of strikes, lockouts or other labour disputes or claims or demands by any government on terms contrary to the wishes of the Party affected.
38.4 In this Agreement, "force majeure" means an act of God, strike, lockout or other interference with work, war (declared or undeclared), blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi governmental restraint, expropriation, prohibition, intervention, direction or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi governmental approvals, consents, permits, licenses, authorities or allocations, and any other cause, whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the Party affected.
39. CLAUSE SEVERANCE
39.1 Any provision of this Agreement that is held void by a court of competent jurisdiction or is voidable by a Party or is or becomes at that time unlawful or unenforceable shall, to the extent to which it is void or voidable or is unlawful or unenforceable, be deemed to be excised from and not form part of this Agreement, without affecting the validity or enforceability of the remaining provisions to the fullest extent permitted by law or in equity.
40.1 A waiver by a Party of any rights arising from a breach or non-observance by any other Party of a term of this Agreement shall not be taken to operate in any way as a waiver of any rights arising from any subsequent continuation of that breach or non-observance, or any further or other breach or non-observance of the same or any other term.
41. GOVERNING LAW
41.1 This Agreement shall be governed by and construed in accordance with the law for the time being in force in the Australian Capital Territory.
42. USE OF NAMES AND LOGO
42.1 Subject to clause 42.2, a Party may only use the name, any trademark or logo of another Party if it first obtains written consent from that other party, which consent may include conditions imposed by that other Party.42.2 In any literature, display or publication depicting the Activities of the Centre, the Centre logo or the Centre logo and the logos of each Party are to be used together.
43. GOODS AND SERVICES TAX (GST)
43.1 The Parties acknowledge and agree that any tax, levy or other similar payments, including without limiting the generality thereof, goods and services taxes, levied by the Commonwealth or a State Government in respect of goods or services provided by the Parties, whether pursuant to this Agreement or pursuant to a licence or other contract contemplated by this Agreement ("a Levy or Tax") shall by borne by the Party or Parties supplying those goods or services.
43.2 Each Party in receipt of goods and services from the Centre indemnifies and agrees to keep the Centre indemnified in respect of any Levy or Tax imposed on the Centre in respect of the goods and services provided to it by the Centre.
43.3 The Parties agree to do all things, including but not limited to the provision of invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any credit, set-off, rebate or refund in relation to any Levy or Tax paid or payable pursuant to this clause.
43.4 The Parties further agree that any Levy or Tax paid by them shall not be taken into account in determining the value of Contributions for the purposes of this Agreement.
43.5 Any credit, rebate or refund due to or received by the Centre in relation to any Levy or Tax paid or payable by the Centre shall be apportioned by the Centre pro rata as between the relevant Parties responsible for the Levy or Tax.
44.1 Any notice, request, consent or other communication in connection with this Agreement:
(a) must be in writing; and
(b) must be left at the address of the addressee, or sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the address of the addressee or sent by facsimile to the facsimile number of the addressee which is specified in this clause or if the addressee has in writing notified another address or facsimile number then to that address or facsimile number.
44.2 The address and facsimile number of each Party is:
In the case of DNP:
Director of National Parks and Wildlife
John Gorton Building
King Edward Terrace
Parks ACT 2600
Facsimile: (06) 6274 2228
In the case of CSIRO:
Deputy Chief Executive
Commonwealth Scientific and Industrial Research Organisation
PO Box 225
Dickson ACT 2602
Facsimile: (02) 6276 6652
44.3 A notice, request, consent or other communication takes effect from the time it is received unless a later time is specified in it.44.4 A notification of change of address shall not take effect until each other Party notifies the Party changing its address that the notice of change of address has been received.
44.5 A letter or facsimile is taken to be received:
(a) in the case of a posted letter, on the third (seventh, if posted to or from a place outside Australia) day after posting; and
(b) in the case of a facsimile, on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient PROVIDED THAT where transmission is completed after 5.00pm on a business day or is sent on a day that is not a business day, the message will not be deemed to have been received until the next business day.
45. ENTIRE AGREEMENT
45.1 This Agreement, including the Attachments hereto (and when executed any agreements or licences contemplated under this Agreement) shall set forth the entire agreement between the Parties and any parties who have in the past or who are now representing either of the Parties, and shall merge all discussions between them on the subject matter of this Agreement. There shall be no understandings, promises, terms, conditions (including representations and warranties) oral or written, expressed or implied, other than those contained in this Agreement.
46.1 This Agreement may not be changed, modified or waived except by an instrument in writing signed by all Parties.
SCHEDULE A CONTRIBUTIONS
[Financial figures not available on web]
[Schedule date: 14 April 2000]
Equipment and Premises - as detailed in Schedule B.
Seconded Personnel - as detailed in Schedule C.
Background Intellectual Property
1. The collection of preserved botanical specimens totalling: NPWS c. 250,000 accessions (including c. 860 type specimens) and CSIRO c. 500,000 accessions (including c. 4,500 type specimens). Each accession is identified by a unique accession number prefixed by the identifier CBG for NPWS and CANB for CSIRO.
[Note : An accession comprises the mounted or packaged dried specimen and associated material such as wood samples, separated fruit, spirit preserved material such as flowers, slides, photographs and living material. Each accession has associated specimen label information derived from field notes.]
SCHEDULE B PREMISES AND EQUIPMENT
[Schedule date: 14 April 2000]
The Herbarium, and office/laboratory accommodation (currently one office and one laboratory) in the Botany Building on the Australian National Botanic Gardens (ANBG) site at Black Mountain is available for use by the Centre.
The glasshouses built on CSIRO site (currently used for orchid research) are available for use by the Centre.
3 glasshouses and temperate shade area on the ANBG site are available for use by the Centre.
The Herbarium (building 502 plus 502A), the herbarium annex (building 65), the molecular laboratory plus the genetics resources offices (part of building 73) at the CSIRO Black Mountain site, and the herbarium and associated laboratory and offices at the Atherton site, are available for use by the Centre.
The glasshouses, shadehouse and phytotron space currently used by Program U of the Division of Plant Industry are available for use by the Centre.
Existing furniture, fittings and laboratory equipment situated in the premises are available for use by the Centre. All items have barcoded labels identifying them as DNP assets.
One ANBG Field/Research vehicle is available for use by the Centre.
Existing furniture, fittings and laboratory equipment situated in the premises are available for use by the Centre. All items are identified as CSIRO assets. Vehicles allocated to Program U are also available for use by the Centre.
Centre personnel are granted access to the following facilities:
SCHEDULE C SECONDED PERSONNEL
[Schedule date: 14 April 2000]
Name Class (%)
Croft J DNP Exec 2 100
Orchard A DNP Exec 2 10
Wallace B DNP Exec 2 10
Clements M DNP Exec 1 100
Fagg M DNP Exec 1 10
Grgurinovic C DNP Exec 1 10
Jones D DNP Exec 1 100
Makinson R DNP Exec 1 100
McCarthy P DNP Exec 1 10
Thompson H DNP Exec 1 10
Whitbread G DNP Exec 1 70
Wilson A DNP Exec 1 10
Hook J DNP6 50
Lepschi B DNP6 100
Mallett K DNP6 10
Mowatt J DNP6 10
Sharma I DNP6 100
Streimann H DNP6 100
Davies F DNP5 100 x 0.68
Garratt M DNP5 100
Lyne A DNP5 100
Nightingale M DNP5 100
Whalen A DNP5 100
Curnow J DNP4 100
FitzGerald K DNP4 100
Hadobas H DNP4 100 x 0.90
Paul J DNP4 100
Wilson J DNP3 10
Name Class (%)
Brown T CSOF8 100
Burdon J CSOF8 100
Gill M CSOF8 100
Groves R CSOF8 100
West J CSOF8 100
Bayer R CSOF7 100
Hyland B CSOF7 100
Craven L CSOF6 100
Young A CSOF6 100
Brubaker C CSOF5 100
Thrall P QEII Fell 100 *
Bock C CSOF4 100 *
de Kok R CSOF4 100 *
Genger R CSOF4 100 *
Miller J CSOF4 100
Murray B CSOF4 100
Vranjic J CSOF4 100 *
Willis A CSOF4 100 *
Moore P CSOF5 100
Grace J CSOF4 100
Gray B CSOF4 100
Connors J CSOF4 100
Cowley K CSOF4 100 x 0.55
Miller C CSOF4 100 x 0.5
Palmer J CSOF4 100
Slee A CSOF4 100
Bagnall N CSOF3 100
Cassells J CSOF3 100 x 0.5
Chhe S CSOF3 100
Collins B CSOF3 100 x. 0.5 (vice Johnston)
Dietrich S CSOF3 100 #
Eliasson C CSOF3 100
Elick R CSOF3 100 x 0.8
Ford A CSOF3 100 *
Graham J CSOF3 100 x 0.5
Gregory E CSOF3 100
Hohnen P CSOF3 100 x 0.75
Johnston J CSOF3 100 x 0.5
Kilby M CSOF3 100
Lally T CSOF3 100 *
Grace R CSOF2 100
Holmes J CSOF 2 100 x 0.2
Woods M CSOF2 100
#Jointly Funded by both Parties
SCHEDULE C SECONDED PERSONNEL (cont)
Honorary Research Fellows
SCHEDULE D ACTIVITIES AND PROGRAMS
[Schedule date: 14 April 2000]
The curatorial, educational and research activities of the Centre are organised into five major programs, the objectives of which are detailed below.
Biodiversity of the Australian Flora Systematics, Biogeography and Evolution
This program involves research into the taxonomy, systematics, evolution and phylogeny of the Australian flora, to determine the diversity, distribution, relationships and genetic systems of native genera and species, as a contribution to the documentation of Australias biodiversity. The program concentrates on nationally and economically important groups, for which we have developed some innovative electronic products disseminating results of the research.
Conservation Biology and Utilisation of the Australian Flora
This program conducts research into the population dynamics, genetic diversity and coevolutionary relationships of several indigenous species, and the ecological threats to biodiversity that fire, disease, invasive species and ecosystem fragmentation pose. The results are applied to the management and restoration of endangered species and ecosystems in Australia. An additional research aim is to improve the sustainable use of Australian plants by identifying, conserving and developing selected indigenous species as sources of genes for crop improvement.
Australian National Herbarium: Research Collections and Services
This program maintains the scientific collections of the Australian National Herbarium to the highest curatorial standards and further develops the taxonomic and geographic representativeness of the collections of Australian and biohistorically related floras as a permanent record of Australian plant diversity. The collection is a resource for research on those floras, and for the provision of high quality botanical information to a range of users - national and international. This program also provides a range of scientific information and identification services to professional clients and the public. This includes provision of services to maintain the scientific authenticity of the collections of the ANBG, including the development and curation of voucher specimens.
Botanical Information and Network Management
This program develops and manages flexible and effective databases and applications of botanical information based on taxonomic, nomenclatural, distributional, voucher and rarity data, made accessible through a variety of ways to researchers, government and the public, at local, national and international levels. It provides a national focus for, and plays a coordinating role in, botanical data management through the development of community data and information standards and the exchange of data between institutions and provides national representation in international botanical information projects. The infrastructure and activities of this program provide the link between the research collections and activities of the Australian National Herbarium and the scientific authenticity of collections of the Australian National Botanic Gardens.
Education, Publicity and Community Liaison
This program includes the major out-reach activities of the Centre, including tertiary level training in herbarium and research laboratory techniques and input into secondary level education programs through the ANBGs Education Centre and CSIROs Green Machine and Double Helix Club. Publicity for the Centres activities, outcomes and products draws on the resources of CSIRO Plant Industrys Visual Resources Unit and the display facilities of the ANBG. Community liaison involves the participation of volunteers within the Centre and a range of extension activities external to the Centre. The latter include participation in species recovery plans, assistance to community groups undertaking environmental projects, and the provision of a plant identification facility and service at the ANBGs Visitor Information Centre.
SCHEDULE E BUDGET 1999/2000
[Financial figures are not available on the web]
[Schedule date: 14 April 2000]
Equipment and Premises - as detailed in Schedule B.
Seconded Personnel - as detailed in Schedule C.
Background Intellectual Property
1 The collection of preserved botanical specimens totalling: NPWS c. 250,000 accessions (including c. 860 type specimens) and CSIRO c. 500,000 accessions (including c. 4,500 type specimens). Each accession is identified by a unique accession number prefixed by the identifier CBG for NPWS and CANB for CSIRO.
[Note : An accession comprises the mounted or packaged dried specimen and associated material such as wood samples, separated fruit, spirit preserved material such as flowers, slides, photographs and living material. Each accession has associated specimen label information derived from field notes.]
The Seal of the Director of National Parks and )
Wildlife was hereto affixed in the presence of: )
____________________ [Witness] )
____________________ [Name] )
SIGNED for and on behalf of )
COMMONWEALTH SCIENTIFIC )
AND INDUSTRIAL RESEARCH )
ORGANISATION by its duly )
authorised officer )
_____________ [Name of Officer] )
in the presence of )
____________________ [Witness] )
_______________________ [Name] )