It is agreed
1. Definitions and interpretation
In this Agreement:
(1) Agreement means this document, including any schedule or annexure to it, together with corresponding details from the Host Organisation Application Form.
(2) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;
(3) Confidential Information means all information that is not in the public domain that is by its nature confidential or that has been designated as confidential by the disclosing party, and includes all trade secrets, financial information and other commercially or scientifically valuable information of whatever description and in whatever form (whether written or oral, visible or invisible);
(4) Corresponding Obligations means, for Walk Organisers, their obligations under the Walk Organiser Terms and Conditions;
(5) Heart Foundation Walking (HFW) means the Heart Foundation’s program to establish and promote participation in Walking;
(6) Heart Foundation Walking Brand Guidelines means the brand guidelines available at www.heartfoundation.org.au/walking as amended from time to time by the Heart Foundation;
(7) Host Organisation Application Form means the application form, available at www.heartfoundation.org.au/walking, which is to be completed by all organisations wishing to apply to become a Host Organisation;
(8) Host Organisation Fee means the fee payable by the Host Organisation to the Heart Foundation in accordance with the Host Organisation Fees Policy that is at www.heartfoundation.org.au/walking (as updated from time to time by the Heart Foundation);
(9) Host Organisation Logos means the trademarks and logos of the Host Organisation and its related bodies corporate (if relevant) provided by the Host Organisation to the Heart Foundation for use in the Promotional Material;
(10) Intellectual Property includes any:
(b) design, patent, trademark, semiconductor, circuit layout or plant breeder rights (whether registered, unregistered or applied for);
(c) trade, business, company or domain name;
(d) know-how, inventions, processes, confidential information (whether in writing or recorded in any form); and
(e) any other proprietary, licence or personal rights arising from intellectual activity in the business, industrial, scientific or artistic fields;
(11) Local Coordinator means a person nominated by the Host Organisation, who is either an employee of the Host Organisation or a representative funded by the Host Organisation (unless otherwise agreed by the Heart Foundation in writing), who coordinates Heart Foundation Walking activities in their local area on behalf of the Host Organisation, including being the primary point of contact for Walk Organisers and walking groups in their area;
(12) Local Coordinator Training & Implementation Resources means the training and implementation resources and materials available at www.heartfoundation.org.au/walking as amended from time to time by the Heart Foundation;
(13) Nominated Area means the area specified in Item 3 of the Host Organisation Application Form, and may include open public spaces;
(14) Participants means any person who participates in Heart Foundation Walking at or in relation to the Nominated Area but does not include any Host Organisation Personnel with the exception of a Host Organisation Personnel who is also the Walk Organiser;
(15) Personal Information has the same meaning as defined in the Privacy Act 1988 (Cth) as it may be amended from time to time;
(16) Personnel means the employees, directors, officers, committee members, honoraries, research fellows, servants, agents, volunteers and subcontractors of a party, and in the case of the Host Organisation includes the Local Coordinator;
(17) Privacy Laws mean all legislation, principles, industry codes and policies regulating the handling of Personal Information including the Privacy Act 1988 (Cth);
(18) Private Land means any area of land not accessible to members of the public for Walking without the prior consent of the legal owner;
(19) Promotional Material means any materials (regardless of form or format) produced by the Heart Foundation to promote HFW and includes posters, pamphlets and flyers, handbooks, registration forms and other forms together with their digital equivalents;
(20) Term means the term specified in clause 3;
(21) Walk Organiser means any person defined as a volunteer walking group leader, registered with the Heart Foundation as a “Walk Organiser”; and
(22) Walking means ambulation on a firm, static surface and excludes walking in water, walking on a treadmill and other non-traditional modes of ambulation.
(1) Reference to:
(a) one gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes a body corporate;
(d) a party includes the party’s executors, administrators, successors and permitted assigns;
(e) a statute, regulation, code or other law or a provision of any of them includes:
(i) any amendment or replacement of it; and
(ii) another regulation or other statutory instrument made under it, or made under it as amended or replaced; and
(f) dollars means Australian dollars unless otherwise stated.
(2) “Including” and similar expressions are not words of limitation.
(3) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(4) Headings and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation.
(5) A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.
(6) If an act must be done on a specified day that is not a Business Day, it must be done instead on the next Business Day.
(1) If a party consists of more than 1 person, this Agreement binds each of them separately and any 2 or more of them jointly.
(2) An obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly.
2.1 The Host Organisation undertakes during the Term to promote the operation of HFW walking groups within and/or through the Nominated Area and ancillary HFW activities.
2.2 The Heart Foundation will provide material support and otherwise cooperate with the Host Organisation in respect of the Host Organisation’s obligations as arising under clause 2.1.
2.3 If the Nominated Area comprises or contains Private Land, the Host Organisation is solely responsible for obtaining prior written permission for access to and use of the Nominated Area but only in respect of the Private Land for HFW related activities. In the event that access to and use of the Nominated Area is terminated or expires, the Host
Organisation must consult with the Heart Foundation and use its best endeavours to identify a replacement area in lieu and the Host Organisation is solely responsible for obtaining prior written permission for access to and use of that (or any subsequent) replacement area.
3.1 This Agreement commences on the date on which the Heart Foundation notifies the Host Organisation of its acceptance of the Host Organisation Application Form, and expires 12 months from that date (Initial Term).
3.2 This Agreement will be extended automatically for a further 12 months (Renewed Term) from the expiry of the Initial Term and from the expiry of each Renewed Term unless one party gives written notice to the other no later than 30 days before the expiry of the Term or the then current Renewed Term (as the case may be). Such automatic renewal will be on the same terms and conditions as the parties agree in writing.
4.1 In consideration of the provision of support at clause 2, the Host Organisation will pay to the Heart Foundation the Host Organisation Fee as calculated in accordance with the Host Organisation Fees Policy as updated and amended from time to time by the Heart Foundation.
4.2 The Host Organisation Fee and any other fees payable under this Agreement are exclusive of Goods and Services Tax (‘GST’) on the supplies made under this Agreement to the extent that they are taxable supplies within the meaning of the A New Tax System (Goods and Services Tax Act) 1999 (Cth) (‘the GST Act’).
4.3 In relation to clause 4.2:
(1) a word or expression defined in the GST Act has the meaning given to it in that Act;
(2) if a party (Supplier) makes a supply under or in connection with this Agreement in respect of which GST is payable, the recipient of the supply (Recipient) must pay to the Supplier, an additional amount equal to the GST payable on the supply (GST Amount);
(3) if a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 4.3(2);
(4) If a payment is calculated by reference to or as a specified percentage of another amount or revenue stream, that payment will be calculated by reference to or as a specified percentage of the amount or revenue stream exclusive of GST;
(5) If the GST payable by a Supplier on any supply made under or in connection with this Agreement varies from the GST Amount paid or payable by the Recipient under clause 4.3(2) such that a further amount of GST is payable in relation to the supply or a refund or credit of GST is obtained in relation to the supply, then the Supplier will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the Recipient;
(6) any payment, credit or refund under clause 4.3(5) is deemed to be a payment, credit or refund of the GST Amount payable under clause 4.3(2);
(7) if an adjustment event occurs in relation to a supply, the Supplier must issue an adjustment note to the Recipient in relation to that supply within 14 days after becoming aware of the adjustment; and
(8) a party need not make a payment for a taxable supply made under or in connection with this Agreement until it receives a tax invoice for the supply to which the payment relates.
5. Intellectual property rights
5.1 No title or other ownership rights in Intellectual Property or otherwise in the Promotional Material, and all copies thereof, including translations, compilations, derivative works and partial copies, shall pass to the Host Organisation under this Agreement.
5.2 The Host Organisation must not copy, alter, modify or otherwise use or interfere with the Promotional Material, or any portion of it, except to the extent strictly compliant with the Heart Foundation Walking Brand Guidelines as varied from time to time.
5.3 The Host Organisation must not use any Heart Foundation logo, mark or name except to the extent strictly compliant with the Heart Foundation Walking Brand Guidelines as varied from time to time.
5.4 The Heart Foundation acknowledges and agrees that:
(1) It has no right, title or interest in any of the Host Organisation Logos, except use of the Host Organisation Logos in the manner expressly approved by the Host Organisation in writing;
(2) Nothing in this Agreement will be construed as an assignment or grant to the Heart Foundation of any right, title or interest in or to any of the Host Organisation Logos; and
(3) It will not take action to the detriment of the rights or interests of the Host Organisation in the Host Organisation Logos.
6.1 A party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
6.2 A party is not in breach of clause 6.1 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
6.3 Each party must take all reasonable steps to ensure that its Personnel engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information.
6.4 Despite any other provision of this clause 6, both parties may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers or accountants, and must ensure that every person to whom that disclosure is made uses that
information solely for the purposes of advising or reporting to that party.
6.5 This clause 6 survives the termination of this Agreement.
7. Compliance with Laws
7.1 The Heart Foundation, the Host Organisation and their respective Personnel must perform their obligations under this Agreement in accordance with all laws and regulations, whether in force now or during the Term, including, but not limited to:
(1) the Privacy Act 1988 (Cth);
(2) the Do Not Call Register Act 2006 (Cth);
(3) the Spam Act 2003 (Cth);
(4) the Telecommunications Act 1997 (Cth);
(5) Telecommunications (Telemarketing and Research Calls) Industry Standard 2017 (Cth)
(6) all laws and regulations relating to charitable fundraising, including lottery and gaming;
(7) all relevant industry codes of practice; and
(8) any other statute, law, rule, regulation, proclamation, order in council, ordinance, by-law or statutory instrument (including but not limited to: orders, directions, guidelines or standards with legislative force),
where relevant to the performance of its obligations under or in relation to this Agreement.
8.1 The Heart Foundation warrants that it will comply with the following obligations:
(1) The Heart Foundation will provide online training of the Local Coordinator;
(2) The Heart Foundation will provide Heart Foundation Walking registration forms on its website at www.heartfoundation.org.au/walking and will arrange for the creation and maintenance of records relating to registered walkers as specified in corresponding program documentation (as varied from time to time);
(3) The Heart Foundation may publicise the Host Organisation’s Heart Foundation Walking group(s) to the general community, health professionals, community and other service groups, as part of Heart Foundation Walking promotional strategies;
(4) The Heart Foundation will provide online reporting functions relating to HFW as specified in corresponding program documentation (as varied from time to time);
(5) The Heart Foundation will stock and administer Heart Foundation Walking merchandise and printed resources to Participants including the provision of the Walker Recognition Scheme milestone rewards;
(6) Without prejudice to any other rights or obligations it may have, where complaints are raised to the Heart Foundation regarding the conduct of a Walk Organiser (and additionally, if the Heart Foundation deems it necessary, on a random sampling basis), the Heart Foundation will arrange for investigation of compliance of the relevant Walk Organiser with the Corresponding Obligations; and
(7) The Heart Foundation must ensure that any Promotional Material, publications or activities relating to the Host Organisation or including the Host Organisations Logos or name is agreed to by the Host Organisation prior to publication or implementation.
8.2 The Host Organisation warrants that it will comply with the following obligations:
(1) The Host Organisation must ensure that any Promotional Material or activities relating to Heart Foundation Walking or involving Participants complies with Heart Foundation Walking Brand Guidelines and is agreed to by the Heart Foundation prior to publication or implementation;
(2) The Host Organisation must ensure the Local Coordinator carries out their obligations in accordance with the obligations noted at clause 9 of this Agreement; and
(3) If the Walk Organiser is an employee of the Host Organisation, the Host Organisation must ensure that the Walk Organiser carries out its obligations in accordance with the Walk Organiser Terms and Conditions as amended from time to time by the Heart Foundation.
9. Local Coordinator
9.1 The Host Organisation warrants that the Local Coordinator:
(1) has knowledge of the Local Coordinator Training & Implementation Resources and the Local Coordinator Registration Form;
(2) in conducting or participating in HFW activities, will comply with any instructions in the Local Coordinator Training & Implementation Resources and any reasonable directions relating to HFW activities received from any one or more of: a Heart Foundation representative or a Host Organisation representative;
(3) will not conduct, organise, undertake or otherwise be involved in any activity that purports to be approved by or associated with HFW unless the Host Organisation has received the Heart Foundation’s prior written approval to do so;
(4) is aware of and understands the current Walker Terms and Conditions, the Walker Handbook, the Walk Organiser Terms and Conditions and the Walk Organiser Handbook;
(5) will comply with all Heart Foundation training requirements including the Local Coordinator training session and all further training or education as reasonably required by the Heart Foundation;
(6) will provide true and correct information to the Heart Foundation and promptly notify the Heart Foundation of any changes; and
(7) will not disclose or use Participant’s personal information other than for the purposes of administering the HFW program and not for any other personal, private or commercial use.
9.2 In the event of a Local Coordinator no longer being employed by the Host Organisation, or otherwise being unavailable to perform the duties of the Local Coordinator, the Host Organisation will advise the Heart Foundation of the cessation of that Local Coordinator, and procure the registration of a replacement Local Coordinator.
10. Liability & Indemnity
10.1 Each party indemnifies (Indemnifying Party) and will keep indemnified the other (including all of its Personnel) (Those Indemnified) from and against all claims, actions, proceedings, demands, costs or expenses arising directly or indirectly from any breach of this Agreement.
10.2 Each party’s liability to indemnify the other under this clause 10 will be reduced proportionately to the extent of any breach by the other of any of its warranties or obligations under this Agreement.
10.3 The Indemnifying Party acknowledges and agrees that the benefit of the indemnity under clause 10.1 to the Personnel of Those Indemnified is held on trust by Those Indemnified.
10.4 The obligations and indemnities in this clause 10 survive the termination or expiration of this Agreement.
11.1 Each party must, at their own expense, effect and maintain with a reputable insurance company for the Term of this Agreement in amounts commensurate with those amounts that a responsible entity would put in place to cover the risks associated with Heart Foundation Walking adequate insurance to cover their obligations under this Agreement, including:
(1) public and products liability insurance; and
(2) workers compensation insurance as required by statute and where that statutory insurance does not include cover for employer’s liability at common law, appropriate employer’s liability insurance
11.2 Each party must deliver to the other party copies of certificates of insurance effected and maintained pursuant to clause 11.1 within a reasonable time, upon request.
12. Dispute Resolution
12.1 If there is a dispute as to any matter under or in connection with this Agreement, the party raising the dispute must provide the other party notice of the dispute with an outline of the nature of the issues and the preferred resolution to the other party in writing within ten Business Days.
12.2 Should the dispute remain unresolved, either party may refer the dispute to an independent expert appointed in accordance with this clause 12. The independent expert shall be chosen by agreement between both parties, and costs and expenses shall be borne equally by both parties to the dispute.
12.3 This clause 12 does not prevent any party from obtaining injunctive, declaratory or other interlocutory relief from a court which may be urgently required.
13. Default and termination
13.1 Either party may terminate this Agreement by giving the other party 60 days notice in writing or such other period as may agreed to between the parties in writing.
13.2 The Heart Foundation may terminate this Agreement by giving 14 days’ written notice to the Host Organisation if the funding in relation to Heart Foundation Walking is suspended, terminated or otherwise unavailable.
13.3 Either party may terminate this Agreement by giving the other party 14 days’ written notice if circumstances arise which materially affect that party’s ability to run Heart Foundation Walking.
13.4 On termination of this Agreement under this clause 13 each party retains its rights against the other party in respect of any past breach, in addition to any other rights, powers or remedies provided by law.
14. Limitation of Liability
14.1 Where the Host Organisation enters into this Agreement in its capacity as trustee for the Trust, the Host Organisation only enters into this Agreement in its capacity as trustee for the Trust and in no other capacity. A liability arising under or in connection with this Agreement can be enforced against the Host Organisation only to the extent to which the Host Organisation is actually indemnified for the liability out of the property of the Trust.
15. Effect of termination
15.1 If this Agreement terminates for any reason:
(1) each party:
(a) is released from its obligation to further perform the Agreement; and
(b) retains the rights it had against the other party in respect of any past breach, in addition to any other rights, powers or remedies provided by law.
(2) the Host Organisation must:
(a) cease to display and distribute Promotional Material;
(b) not reproduce, modify, adapt or exploit any Heart Foundation Intellectual Property; and
(c) return or make available for collection all Promotional Material.
16. Force majeure – unforeseen events causing delay
16.1 A party (Affected Party) is not liable for any delay or failure to perform an obligation (other than to pay money) under this Agreement caused by:
(1) a natural catastrophe or disaster such as an earthquake or severe storm;
(2) war, terrorism, riot, insurrection, vandalism or sabotage;
(3) strike, lockout, ban, limitation of work or other industrial disturbance; or
(4) law, rule or regulation of any government or governmental agency
and executive or administrative order or act of general or particular application.
16.2 The Affected Party must notify each other party as soon as practical of any anticipated delay or failure caused by an event referred to in clause 16.1 (Event).
16.3 The performance of the Affected Party’s obligation is suspended for the period of delay caused by the Event.
(1) performance of an obligation is prevented by an Event; or
(2) a delay caused by the Event exceeds 60 days;
any party may terminate this Agreement at the expiration of not less than 60 days’ notice to the other parties.
17.1 A party may not assign or otherwise deal with this Agreement unless it is in writing and signed by the parties or their duly authorised representative. Consent must not be unreasonably withheld from the other party.
18.1 If any provision in this Agreement is unenforceable, illegal or void or makes this Agreement or any part of it unenforceable, illegal or void, then that provision is severed and the rest of this Agreement remains in force.
18.2 If any provision in this Agreement is unenforceable, illegal or void in one jurisdiction but not in another jurisdiction or makes this Agreement or any part of it unenforceable, illegal or void in one jurisdiction but not in another jurisdiction, then that provision is severed only in respect of the operation of this Agreement in the jurisdiction where it is unenforceable, illegal or void.
19. Cumulative rights
19.1 The rights, powers and remedies provided in this Agreement are in addition to those provided by law independently of this Agreement and each right, power and remedy provided in this Agreement (including any right of indemnity) is additional to and not exclusive of every other right, power or remedy provided in this Agreement.
20. Statutory requirements
20.1 In carrying out this Agreement each party must comply with the requirements of all laws and all permits and directions of competent authorities.
21. Further assurance
21.1 Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Agreement.
22. Entire understanding
22.1 This Agreement:
(1) is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and
(2) supersedes any prior agreement or understanding on anything connected with that subject matter.
23.1 Any amendment or variation to this Agreement is not effective unless it is in writing and agreed by the parties or their duly authorised representatives.
24.1 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
24.2 The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
24.3 A waiver is not effective unless it is in writing.
24.4 Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
25.1 Any notice, demand, consent or other communication between the parties may be delivered personally, sent prepaid or registered mail, email or by facsimile to the address of the other party’s Contact Person as identified at Item 2 of the Host Organisation Application Form, as amended from time to time, and any such notice will be deemed to have been received on the date it is recorded as having been delivered.
26. Governing law and jurisdiction
26.1 The law of Victoria governs this Agreement.
26.2 The parties submit to the non-exclusive jurisdiction of the courts of Victoria and of the Commonwealth of Australia