Community Sporting Club Equipment Subsidy Scheme terms and conditions
Terms and conditions of agreement to pay subsidy
1. Definitions and Interpretation
1.1 Definitions in Agreement
Unless the context otherwise requires, terms which have a defined meaning in the Agreement have the same meaning when used in this Agreement.
In this Agreement, unless the context otherwise requires:
- Agreement means any agreement between the Applicant and DSR which is expressed to incorporate this Agreement.
- Agreement Commencement Date
- Agreement Commencement Date means the date specified as such in the Agreement Details.
- Applicant means:
- with reference to the Athlete Travel Subsidy Scheme
- an athlete aged 13 – 21 years at the commencement date of the event;
- currently a registered member of a club or association that is affiliated with a State Sporting Association (SSA) and deemed eligible by DSR;
- selected and competing in one of the four performance categories, as stipulated by DSR;
- permanently residing in Western Australia;
- who is an Australian citizen or permanent resident; and
- who is validated by their sport’s recognised SSA.
- with reference to the Community Sporting Club Equipment Subsidy Scheme:
- a club that has as their core business the delivery of sport, as deemed eligible by the Department of Sport and Recreation (DSR);
- participates in, or conducts fixtured community based sporting competitions;
- is an incorporated, not for profit entity; and
- has an ABN, be registered or eligible to be registered for GST.
- Auditor General
- Auditor General means the Auditor General for the State.
- Business Day
- Business Day means a day other than Saturday, Sunday or public holiday in Perth, Western Australia.
- Confidential Information
- Confidential Information means information in respect of the Agreement that:
- is by its nature confidential;
- is specified by a Party to be confidential, including any information specified to be confidential in the Agreement;
- a Party knows or ought to know is confidential;
- information relating to the internal management and structure of the Party or the personnel, policies, strategies, practices and procedures of the Party;
- information of the Party to which the other Party has access that has an actual or potential commercial value to the first Party or to the person or corporation which supplied that information;
- information in the Party’s possession relating to the other Party’s clients or suppliers and like information;
- the terms of this Agreement and any negotiations in connection with this Agreement including correspondence and drafts of this Agreement;
- all records concerning the operation, dealings, organisations, business, financial transactions, books of account, contracts, agreements, arrangements, trade secrets or markets, or the commercial, industrial, financial, or business affairs of either Party; and (k) any information pertaining to a Party which is or could reasonably be regarded as being of a politically or commercially sensitive nature.
- DSR means the Department of Sport and Recreation or such other body or instrumentality which is charged with the administration of the Agreement from time to time on behalf of the State.
- Event of Default
- Event of Default means the occurrence of any one of the following events:
- a Party breaches a material obligation under the Agreement that cannot be remedied; or
- a Party breaches any other material obligation under the Agreement and that breach is not remedied within the period of time specified in the notice (being not less than 10 Business Days) after the other Party gives a notice to the Party in breach requiring the breach to be remedied; or
- a Party commits 3 breaches of its obligations under the Agreement over any 12 month period, provided that the other Party has given the Party in breach notice of any such breaches and whether or not the Party has rectified such breaches; or
- an Insolvency Event occurs in respect of a Party; or
- a Party ceases, or threatens to cease, to carry on business; or
- it becomes unlawful for a Party to perform its obligations under the Agreement; or
- if a Party is a body corporate, that Party is convicted of a criminal or statutory offence that is punishable by a fine or penalty of, or exceeding, $10,000; or
- if in the reasonable opinion of DSR, the reputation of DSR, the State or the Government of Western Australia is, or is likely to be, damaged by any act or omission of the Applicant.
- Force Majeure Event
- Force Majeure Event means an event that prevents a Party from performing its obligations, or receiving the benefit of the other Party's obligations, in whole or part, under the Agreement and which is unforeseeable and beyond the reasonable control of the affected Party including:
- acts of God;
- explosion or fire;
- storm or cyclone (of any category);
- earthquake or tsunami;
- volcanic eruption;
- impact of vehicles or aircraft;
- failure of a public utility;
- epidemic or pandemic;
- civil unrest;
- industrial action (other than industrial action limited to the affected party or a subcontractor);
- war (including civil war);
- acts of terrorism; and
- radioactive or biological contamination.
but does not include:
- lack of or inability to use funds for any reason; or
- any occurrence which results from the wrongful or negligent act or omission of the affected party or the failure by the affected party to act in a reasonable and prudent manner; or
- an event or circumstance where the event or circumstance or its effects on the affected party or the resulting inability of the affected Party to perform its obligations, or receive the benefit of the other Party's obligations, could have been prevented, overcome or remedied by the exercise by the affected Party of the standard of care and diligence consistent with that of a reasonable and prudent person; or
- breakdown of equipment; or
- the failure by a third party to fulfil a contractual commitment with the affected Party other than as a result of any of items (a) to (o) above; or
- any act or omission of a subcontractor.
- Insolvency Event
- Insolvency Event means the occurrence of any of the following events:
- (informs creditors) a corporation informs its creditors generally that it is insolvent;
- (receiver) a liquidator, administrator, trustee in bankruptcy, receiver or receiver and manager or similar officer is appointed in respect of any of the assets of a corporation;
- (execution) a distress, attachment or other execution is levied or enforced upon or against any assets of a corporation and in the case of a writ of execution or other order or process requiring payment, it is not withdrawn or dismissed within 10 Business Days;
- (voluntary liquidation) a corporation enters into voluntary liquidation;
- (application) an application is made for the administration, dissolution or winding up of a corporation which application is not stayed within 10 Business Days of being made;
- (winding up) an order is made for the administration, dissolution or winding up of a corporation;
- (resolution) a resolution is passed for the administration or winding up of a corporation other than for the purposes of a solvent reconstruction or amalgamation on terms approved by the other Party;
- (arrangement or composition) a corporation enters, or resolves to enter into or has a meeting of its creditors called to enter into any scheme of arrangement or composition with its creditors generally, or any class of its creditors, other than for the purposes of a solvent reconstruction or amalgamation on terms approved by the other Party;
- (statutory demand) a corporation fails to comply with, or fails to apply to have set aside, a statutory demand within 10 Business Days of the time for compliance, or:
- a corporation applies to have a statutory demand set aside within 10 Business Days of the time for compliance;
- the application to set aside the statutory demand is unsuccessful; and
- the corporation fails to comply with the statutory demand within 5 Business Days of the order of the court dismissing the application;
- (execution levied against it) a corporation has execution levied against it by creditors, debenture holders or trustees or under a floating charge or circulating security interest; or
- (insolvency - corporation) a corporation is unable to pay its debts when they fall due, or is deemed unable to pay its debts under any applicable legislation (other than as a result of a failure to pay a debt or claim which is the subject of a good faith dispute);
- (insolvency - persons) a person becomes an insolvent under administration as defined in section 9 of the Corporations Act 2001 (Cth) or action is taken which could result in that event;
- (death etc.) a person dies, ceases to be of full legal capacity or otherwise becomes incapable of managing its own affairs for any reason; and
- (analogous matters) anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
- Minister means the State's Minister for Sport and Recreation.
- National Sporting Organisation (NSO)
- National Sporting Organisation (NSO) means the body that is recognised by the Australian Sports Commission (ASC) as the pre-eminent organisation taking responsibility for the national development of that sport in Australia and has satisfied the ASCs eligibility criteria for recognition.
- Party means a party to the Agreement.
- Parties means both of them.
- Records means records and information of any kind, including originals and copies of all accounts, financial statements, books, files, reports, records, correspondence, documents and other materials created for, or relating to, or used in connection with, the application for and use of the Subsidy, whether or not containing Confidential Information, and however such records and information are held, stored or recorded.
- Sport means a human activity capable of achieving a result requiring physical exertion and/or physical skill which, by its nature and organisation, is competitive and is generally accepted as being a sport.
- Subsidy means either of the Athlete Travel Subsidy or the Equipment Subsidy (together, the Subsidies), being any sum that the DSR may pay, in its absolute discretion, in any order, to an Applicant as part of the Supporting Community Sport Initiative.
- State means the State of Western Australia.
- State Sporting Association (SSA)
- State Sporting Association (SSA) means a not for profit organisation that has been an incorporated association or company limited by guarantee for a minimum of three years that it is the pre-eminent representative organisation taking responsibility for the development of a recognised sport in Western Australia and is formally affiliated with the recognised National Sporting Organisation.
- Supporting Community Sport Initiative
- Supporting Community Sport Initiative means the initiative described in the DSR application form.
- Term means the period specified as such in the Agreement, commencing on the Agreement Commencement Date.
In this Agreement, unless the context otherwise requires:
- the singular includes the plural and vice versa;
- a reference to any thing is a reference to the whole or any part of it and a reference to a group of things or persons is a reference to any one or more of them;
- a reference to a gender includes other genders;
- a reference to a person includes a Public Authority, a public body, a company and an incorporated or unincorporated association or body of persons;
- a reference to a person includes a reference to the person's executors, administrators, successors, substitutes (including, but not limited to, a person taking by novation) and permitted assigns;
- if a Party consists of a consortium of two or more persons whether by way of partnership or joint venture or otherwise, then:
- an obligation imposed on a Party under the Agreement binds each person who comprises that person jointly and severally;
- each person who comprises a Party agrees to do all things necessary to enable the obligations imposed on that Party under the Agreement to be undertaken; and
- the act of one person who comprises a Party binds the other persons who comprise that Party;
- an agreement, representation or warranty on the part of or in favour of two or more persons binds, or is for the benefit of, them jointly and severally;
- no rule of interpretation applies to the disadvantage of a Party on the basis that it put forward this Agreement;
- "includes" in any form is not a word of limitation;
- the meaning of "or" will be that of the inclusive "or", meaning one, some or all of a number of possibilities;
- a reference to this Agreement or another instrument includes all variations and replacements of either of them despite any change of, or any change in the identity of the relevant Party;
- a reference to a document published at an electronic address is to the document as published at that electronic address on the date of first public issue of the Agreement;
- a reference to a clause is a reference to a clause of this Agreement;
- headings are included for convenience only and do not affect the interpretation of this Agreement;
- a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of it;
- if a word or phrase is defined, other grammatical forms of that word or phrase have a corresponding meaning;
- a reference to writing includes any means of representing or reproducing words in visible form including by electronic means such as facsimile transmission;
- a reference to a liability includes all obligations to pay money and all other losses, costs and expenses of any kind;
- a reference to a month is to a calendar month and a reference to a year is to a calendar year;
- if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated inclusive of that day;
- if a date stipulated for payment or for doing an act is not a Business Day, the payment must be made, or the act must be done, on the next Business Day;
- a reference to a monetary amount means that amount in Australian currency; and
- a reference to time means the time observed by the general community from time to time in Perth, Western Australia.
2. Term of the Agreement
This Agreement commences on the Agreement Commencement Date and unless sooner terminated under clause 16, continues for the Term.
DSR, in its absolute discretion, agrees to pay the Subsidy to the Applicant on the terms and conditions of this Agreement.
- The Applicant acknowledges that an application for a Subsidy confers no right or expectation on the Applicant to be considered for, or granted, any Subsidy.
- The Applicant acknowledges that DSR has absolute discretion in the payment of any Subsidy to any Applicant, determining the amount of any Subsidy, and determining the order of any Subsidy payments.
- The Applicant acknowledges that the event or championship the Applicant wishes to travel to must be officially sanctioned by the SSA which is the pre eminent representative organisation taking responsibility for the development of the sport in Western Australia 3A.4 The Applicant acknowledges that the Applicant's State Sporting Association must verify, to the satisfaction of DSR, the Applicant's level of representation at the event or championship that the Applicant wishes to travel to.
4. The Applicant's Obligations
4.1 During the Term the Applicant:
- with reference to the Athlete Travel Subsidy Scheme:
- must permanently reside at the address provided in the application (unless a regional athlete is currently boarding to attend university or school) ;
- must have been selected to represent their region, Western Australia or Australia in SSA/National Sporting Organisation (NSO) sanctioned state, national or international championship /events.
- must not be in receipt of a travel subsidy awarded under the DSR Travel Subsidy Scheme in the same performance level during the current financial year; and
- with reference to the Community Sporting Club Equipment Subsidy Scheme
- must not apply for, or be in receipt of:
- an equipment subsidy the result of another application for an equipment subsidy by a body that is the same association of persons acting through a related entity
- must agree to return Subsidy monies to DSR if;
- travel (the subject of the application) is not undertaken or
- equipment has not been purchased
- must participate in media events and promotional events at the discretion of DSR;
- when requested by DSR to provide written information or Records relating to the Applicant's application for, or use of, a Subsidy, provide such written information or Records within 10 Business Days of the DSR request.
- Must use the equipment subsidy for the purchase of shared equipment accessible to all club members.
5. Supporting Community Sport Initiative Cancellation
In the event that the Supporting Community Sport Initiative is cancelled, postponed or ceases to operate, any Applicants' entitlements to receive any Subsidy will cease immediately, regardless of whether any or part of a Subsidy has already been paid to an Applicant.
6. Reporting Requirements
Each Party must undertake and comply with the reporting requirements specified in the Agreement.
7. Fees and Payment
- In its absolute discretion, DSR may pay the Subsidy to the Applicant.
- All Subsidy payments are to be used by the Applicant for the purposes of the Supporting Community Sport Initiative, and for no other purpose.
The Parties agree that:
- The Subsidy payable under this Agreement is inclusive of GST; and
- If an applicant for the equipment subsidy, the club must have an ABN and be registered or eligible to be registered for GST
- GST is payable on the value of the Agreement, including any in-kind support.
- The Applicant acknowledges and warrants to DSR that:
- as at the Commencement Date the Applicant is free to, and has the authority to, enter into this Agreement.
- the Applicant has taken all necessary action to authorise the execution, delivery and performance of this Agreement in accordance with its terms;
- all information provided to DSR by or on its behalf in connection with this Agreement, the transactions contemplated by this Agreement, and its assets, business and affairs are true and correct in all material respects and are not, whether by omission or otherwise, misleading or deceptive; and
- it has not withheld from DSR any document, information or other fact material to the decision of DSR to enter into this Agreement.
- The Applicant acknowledges that DSR has entered into this Agreement in reliance on the representations and warranties in, or given under, this Agreement.
- A breach of any of the warranties in this clause will be considered a material breach for clause 14.
10. Public Disclosure and Confidentiality
The Applicant agrees to:
- DSR disclosing any information provided by the Applicant to DSR under or in connection with the Agreement to enable DSR to meet public disclosure obligations DSR may have:
- under any current or future legislation; or
- under any current or future policy of DSR or the State; or
- in the course of official duties of the Minister responsible for DSR; or
- to satisfy requirements of parliamentary accountability; or
- under annual reporting obligations of DSR; or
- to satisfy any other recognised public requirement.
10.2 Freedom of Information
The Applicant acknowledges that the Freedom of Information Act 1992 (WA) applies to:
- the Agreement; and
- information held or compiled by DSR or the State in relation to the Agreement.
10.3 Auditor General
- The Applicant agrees and acknowledges that the powers and responsibilities of the Auditor General under the Financial Management Act 2006 (WA) and the Auditor General Act 2006 (WA) are not limited or otherwise affected by the Agreement.
- The Applicant must allow the Auditor General, or an authorised representative of the Auditor General, to have access to and examine the Applicant’s Records concerning the Agreement.
The Applicant releases DSR from all liability whatsoever for any loss, injury, damage, liability, costs or expense resulting from the disclosure of information about the Applicant under clauses 10.1 and 10.2 by DSR.
- Each Party must keep any Confidential Information confidential. A Party must not disclose, use, reproduce or distribute to any person the Confidential Information except:
- where necessary (and only to the extent necessary) for the purpose of complying with this Agreement; or
- as authorised in writing by the other Party; or
- to the extent that the Confidential Information is public knowledge (other than because of a breach of this clause by a Party);
- as required by any law, judicial or parliamentary body or governmental agency; or
- when required (and only to the extent required) to the Party’s professional advisers, but the disclosing Party must ensure that such professional advisers are bound by the confidentiality obligations imposed on that Party under this clause 10.5(a).
- A Party must immediately notify the other Party if it becomes aware of a suspected or actual unauthorised disclosure, copying or use of the other Party's Confidential Information.
- A Party must ensure that each person to whom it discloses the Confidential Information (except a person to whom disclosure is legally required) complies with the obligations in clauses 10.5(a) and 10.5(b).
10.6 Return of Confidential Information
Except to the extent that a Party is required by law to retain any Records, a Party must return all Records containing the other Party’s Confidential Information immediately at the expiration or termination of the Agreement.
The obligations in this clause 10 are continuing obligations and survive expiration or termination of the Agreement.
- The Applicant must not make any misleading public statement concerning the Agreement.
- DSR may use existence of the Agreement and the other Party’s name for reasonable promotional or publicity purposes (but only with the written consent of the other party), and reporting functions.
The Applicant must keep accurate, complete and current written Records in respect of the Agreement.
13. Conflict of Interest
If a conflict of interest arises in respect of the Applicant, it must:
- promptly notify DSR that the conflict has arisen and provide full details; and
- take reasonable steps in consultation with DSR to remove or manage the conflict.
14. Default, termination and suspension
14.1 Consequences of Event of Default
If an Event of Default occurs in respect of one Party the other Party may by notice in writing to the Party the subject of the Event of Default terminate the Agreement.
14.2 Consequences of Termination or Expiry
- The expiration or termination of the Agreement does not affect any rights, liabilities or obligations of either Party as a result of anything occurring before the expiration or termination.
- The Applicant must return all or any part of the Subsidy as specified by DSR.
15. Force Majeure
A Party that claims it is prevented from performing its, or receiving the benefit of the other Party's, obligations under this Agreement by a Force Majeure Event must, within 5 Business Days of the first occurrence of the Force Majeure Event, give to the other party written notice containing full particulars of the Force Majeure Event, including:
- the nature of the Force Majeure Event;
- the date of the first occurrence of the Force Majeure Event;
- the effect of the Force Majeure Event on that Party’s ability to perform its, or receive the benefit of the other Party's, obligations under this Agreement; and
- the expected duration of the Force Majeure Event.
15.2 Entitlement of the Affected Party
- If a Party is prevented from performing its, or receiving the benefit of the other Party's, obligations under this Agreement in whole or part by a Force Majeure Event then, subject to that Party complying with clauses 15.1, 15.2(b) and 15.4, performance or receipt of those obligations is suspended to the extent that performance or receipt is prevented by that Force Majeure Event.
- The affected Party must provide the other Party with regular updates as to the affected Party's circumstances and the impact of the Force Majeure Event during the time that it is prevented from performing its, or receiving the benefit of the other Party's, obligations under the Agreement and in any event must provide the other Party with an update within 2 Business Days of a request at any time by the other Party.
- The affected Party must notify the other Party in writing as soon as, and in any event within 2 Business Days of, the Force Majeure Event ceasing to prevent it from performing or receiving those obligations under this Agreement.
15.3 Implications of a Force Majeure Event
If a Party’s obligations are suspended under clause 15.2, then during that period of suspension:
- that Party’s actual non-performance, or delay in performance, of this Agreement resulting from the Force Majeure Event will not be deemed to be a breach of the Agreement; and
- each Party will bear its own costs.
15.4 Effect of a Force Majeure Event
- Within 5 Business Days of receipt by a Party of a notice referred to in clause 15.1, the Parties must meet to discuss the steps that the Parties will take to minimise any effects of the Force Majeure Event.
- Irrespective of any other obligations under this clause 15, on and from the date a Party is aware of a Force Majeure Event, that Party must mitigate and minimise the effect of the Force Majeure Event.
If a Party is prevented from performing its, or receiving the benefit of the other Party's, obligations under this Agreement in whole or part by a Force Majeure Event for a period in excess of 20 Business Days (or such other period specified in the Agreement Details) then either Party may by notice in writing to the other Party terminate this Agreement.
16.1 Notices Generally
Each notice or other communication given under the Agreement:
- must be in writing;
- may be given by an authorised officer of a Party; and
- must be:
- hand delivered or sent by prepaid post to the address of the recipient specified in the Agreement;
- sent by email to the address of the recipient as specified in the Agreement and the email must be sent with automatic receipt notification; or
- sent by facsimile to the facsimile number of the recipient specified in the Agreement,
- subject to clause 16(e), is taken to be received:
- in the case of hand delivery, on the date of delivery;
- in the case of post, on the third Business Day after posting; and
- in the case of email, at the time in the place to which it is sent equivalent to the time shown on the automatic receipt notification received by the Party sending the email from the recipient;
- in the case of facsimile, on the date on which the sender’s facsimile machine records that the facsimile was successfully transmitted; and
- if received after 5.00 pm or on a day other than a Business Day, is taken to be received on the next Business Day.
16.2 Notices Sent by Email
With respect to a notice sent by email, the Parties agree that the following applies:
- any text in the body of the email or the subject line will not form part of the notice; and
- an attachment to the email will only form part of the notice if it is in .pdf format or such other format as may be agreed between the Parties from time to time,
and with respect to any notice sent by email under or in connection with the Agreement, each Party must ensure that:
- its firewall and/or email server (as applicable):
- allows messages of up to 6MB to be received;
- automatically sends a receipt notification to the sender upon receipt of a message; and
- its systems automatically send a notification message to each of the sender and the recipient when a message is received by the recipient's domain that cannot or will not be delivered to the recipient.
17.1 Assignment, Novation etc
- Unless a Party obtains the other Party's prior written consent, a Party must not assign, novate or otherwise deal with any of its rights or obligations under the Agreement.
- DSR may subcontract any of its rights or obligations under the Agreement.
- If the Applicant is a corporation (other than a public company as defined in the Corporations Act 2001 (Cth)) the Applicant is taken to have assigned the Agreement if:
- anything occurs, the effect of which is to transfer, directly or indirectly, the management or control of the Applicant to another person; or
- there is any change in control of the Applicant within the meaning of the Corporations Act 2001 (Cth).
- Any waiver by the Applicant or DSR must be in writing and signed by the Party waiving the right.
- Any waiver by the Applicant or DSR does not affect its rights in respect of any other breach of the Agreement by the other Party.
- Subject to clause 17.2(a), any delay or failure by the Applicant or DSR to enforce any right under or in connection with the Agreement or any law will not be construed as a waiver of their respective rights under the Agreement or any law.
17.3 Entire Agreement
The Agreement supersedes all prior negotiations, understandings and agreements (whether in writing or not) between the Applicant and DSR relating to the matters covered by the Agreement and constitute the full and complete agreement between the Applicant and DSR relating to the matters covered by the Agreement.
17.4 Rights Are Cumulative
Unless otherwise stated the rights, powers and remedies in the Agreement are in addition to, and not exclusive of, the rights, powers and remedies existing at law or in equity.
17.5 Applicable Law
The Agreement is governed by the laws of the State of Western Australia. The Applicant and DSR irrevocably submit to the exclusive jurisdiction of the courts of Western Australia.
17.6 Further Assurance
The Applicant and DSR must do everything reasonably necessary, at that Party's expense, including signing further documents, to give full effect to, perfect or complete, the Agreement.
17.7 Dispute Resolution
- The Parties agree to use reasonable efforts to resolve by negotiation any problem that arises between them under the Agreement. Neither Party will resort to legal proceedings, or terminate the Agreement, until the following process has been exhausted, except if it is necessary to seek an urgent interim determination.
- If a problem arises (including a breach or an alleged breach) under the Agreement which is not resolved at an operational level or which is sufficiently serious that it cannot be resolved at the operational level, a Party concerned about the problem may notify the other. Management representatives [or nominated representatives?] of each of the Parties will then endeavour in good faith to agree upon a resolution.
Nothing in the Agreement may be construed to make a Party a partner, agent, employee or joint venturer of the other Party.