Common use of Termination With Compensation Clause in Contracts

Termination With Compensation. Without limiting any other rights or remedies ARENA may have arising out of or in connection with this Agreement, if there has been a change in Commonwealth government policy, ARENA may, by providing the Recipient with not less than [60] days’ notice, terminate this Agreement or reduce the scope of the Activity. On receipt of a notice of termination or reduction the Recipient must: take all available steps to minimise loss resulting from that termination or reduction and to protect Agreement Material; and in the case of a reduction in scope, continue to undertake any part of the Activity not affected by the notice (unless the Recipient, acting reasonably, notifies ARENA that it is not commercially viable to do so). If this Agreement is terminated under this clause 38.1, ARENA is liable only for: payments under clause 15 in accordance with this Agreement before the effective date of termination, but only to the extent that those monies have been spent, or legally committed for expenditure by the Recipient in accordance with this Agreement and are payable by the Recipient as a current liability, by the date the Recipient receives the notice of termination (written evidence of which will be required); where the Recipient has undertaken work on but not completed a Milestone by the date the Recipient receives the notice of termination, funding in accordance with this Agreement to the extent that those monies have been spent, or legally committed for expenditure by the Recipient in accordance with this Agreement and payable by the Recipient as a current liability, on that Milestone by the date the Recipient receives the notice of termination (written evidence of which will be required); and subject to clause 38.1(e), reasonable costs actually incurred by the Recipient and directly attributable to the termination. If the scope of the Activity is reduced, ARENA's liability to pay the funding under this Agreement abates in accordance with the reduction in the Activity. ARENA is not liable to pay compensation under clause 38.1(c)(iii) for an amount which would, in addition to any amounts paid or due, or becoming due, to the Recipient under this Agreement, exceed the Total Funds. The Recipient is not entitled to compensation for loss of prospective profits. Without limiting any other rights or remedies ARENA may have arising out of or in connection with this Agreement, ARENA may terminate this Agreement or reduce the scope of the Activity effective immediately by giving notice to the Recipient if: the Recipient breaches a material provision of this Agreement where that breach is not capable of remedy; the Recipient breaches any provision of this Agreement and fails to remedy the breach within 30 days after receiving notice requiring it to do so; in the opinion of ARENA, a conflict of interest exists which would prevent the Recipient from performing its obligations under this Agreement; Recipient Contributions or Other Contributions are not used for the Activity in accordance with the timeframes specified in items 4 and 5 of Schedule 4; the Recipient: Abandons the Activity; notifies ARENA of an intention to Abandon the Activity; or states an intention to Abandon the Activity, and does not, when requested by ARENA, demonstrate to ARENA's satisfaction within 14 days that the Recipient will proceed with the Activity; in ARENA's reasonable opinion, it is unlikely that the Recipient will be able to complete a Milestone to ARENA's satisfaction; the completion date for a Milestone has passed and the Recipient has not completed the Milestone; ARENA is satisfied that any statement made in the Application is incorrect, incomplete, false or misleading in a way which would have affected the original decision to approve the provision of the funding under this Agreement; a Related Agreement is terminated by ARENA for default by the Recipient; a Related Commonwealth Agreement is terminated by the Commonwealth for default by the Recipient; or an Insolvency Event occurs in relation to an Activity Participant. Without limitation, for the purposes of clause 38.2(a)(i), each of the following constitutes a breach of a material provision: [Note: This clause may be amended depending on the Recipient and the Activity.] breach of warranty under clause 4.2 (Warranties); failure to comply with clause 5 (Risk management); failure to comply with clause 6 (Community consultation); a failure to comply with clause 18.1 (What Funds can be used for); a failure to comply with clause 21 (Activity Participants, subcontractors and Personnel); a failure to comply with clause 24 (Intellectual Property Rights); a failure to comply with clause 28 (Insurance); a failure to comply with clause 31 (Protection of Personal Information); and a failure to notify ARENA of a conflict of interest under clause 33 (Conflict of interest). If the scope of the Activity is reduced under this clause 38.2: ARENA's liability to pay the funding under this Agreement abates in accordance with the reduction in the Activity; and the Recipient must continue to undertake any part of the Activity not affected by the notice (unless the Recipient, acting reasonably, notifies ARENA that it is not commercially viable to do so). At any time after an Insolvency Event occurs with respect to the Recipient, ARENA, at its absolute discretion: may terminate this Agreement effective immediately by giving Notice to the Recipient; and is entitled to recover from the Recipient, and the Recipient must pay to ARENA, an amount equal to all Funds paid to the Recipient as at the date of termination of this Agreement. The amounts payable by the Recipient to ARENA under clause 38.3(a) will be recoverable by ARENA in accordance with clause 41.2. Without limiting any of ARENA's other rights or remedies, on termination of this Agreement: subject to clauses 36.5 and 38.1(c), ARENA is not obliged to pay to the Recipient any outstanding amount of funding under this Agreement; and ARENA is entitled to exercise any right to recover from the Recipient, including under clauses 19 and 23. Termination of this Agreement does not affect any accrued rights or remedies of a party. Survival The following clauses survive the expiry or termination of this Agreement: Clause 17 (GST); Clause 18 (Use of Funds); Clause 19 (Repayment); Clause 20.2 (Reporting); Clause 20.3 (Evaluation); Clause 23 (Assets); Clause 24 (Intellectual Property Rights); Clause 25 (Moral Rights); Clause 27 (Indemnity); Clause 28 (Insurance); Clause 29 (Acknowledgment, publicity and knowledge sharing); Clause 30 (Confidentiality); Clause 31 (Protection of Personal Information); Clause 32 (Freedom of Information); Clause 34 (Books and records); Clause 35 (Audit and access); Clause 38.3 (Termination for an Insolvency Event with respect to the Recipient); Clause 38.3 (ARENA rights); and Clause 41.2 (Amounts due to ARENA), together with any provision of this Agreement which expressly or by implication from its nature is intended to survive the expiry or termination of this Agreement. Notices and other communications A Notice must be: in writing, in English and signed by a person duly authorised by the sender; and hand delivered or sent by prepaid post or facsimile to the recipient's address for Notices specified in item 21 of Schedule 1, as varied by any Notice given by the recipient to the sender. A Notice given in accordance with clause 40.1 takes effect when it is taken to be received (or at a later time specified in it), and is taken to be received: if hand delivered, on delivery; if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); or if sent by facsimile, when the sender's facsimile system generates a message confirming successful transmission of the entire Notice unless, within one Business Day after the transmission, the recipient informs the sender that it has not received the entire Notice, but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day in the place where the Notice is taken to be received, the Notice is taken to be received at 9.00am on the next Business Day in the place where the Notice is taken to be received.

Termination With Compensation. ‌ (a) Without limiting any other rights or remedies ARENA may have arising out of or in connection with this Agreement, if there has been a change in Commonwealth government policy, ARENA may, by providing the Recipient with not less than [60] days’ notice, terminate this Agreement or reduce the scope of the Activity. . (b) On receipt of a notice of termination or reduction the Recipient must: : (i) take all available steps to minimise loss resulting from that termination or reduction and to protect Agreement Material; and and (ii) in the case of a reduction in scope, continue to undertake any part of the Activity not affected by the notice (unless the Recipient, acting reasonably, notifies ARENA that it is not commercially viable to do so). . (c) If this Agreement is terminated under this clause 38.1, ARENA is liable only for: for:‌ (i) payments under clause 15 in accordance with this Agreement before the effective date of termination, but only to the extent that those monies have been spent, or legally committed for expenditure by the Recipient in accordance with this Agreement and are payable by the Recipient as a current liability, by the date the Recipient receives the notice of termination (written evidence of which will be required); required);‌ (ii) where the Recipient has undertaken work on but not completed a Milestone by the date the Recipient receives the notice of termination, funding in accordance with this Agreement to the extent that those monies have been spent, or legally committed for expenditure by the Recipient in accordance with this Agreement and payable by the Recipient as a current liability, on that Milestone by the date the Recipient receives the notice of termination (written evidence of which will be required); and and‌ (iii) subject to clause 38.1(e), reasonable costs actually incurred by the Recipient and directly attributable to the termination. termination.‌ (d) If the scope of the Activity is reduced, ARENA's liability to pay the funding under this Agreement abates in accordance with the reduction in the Activity. . (e) ARENA is not liable to pay compensation under clause 38.1(c)(iii) for an amount which would, in addition to any amounts paid or due, or becoming due, to the Recipient under this Agreement, exceed the Total Funds. Funds.‌ (f) The Recipient is not entitled to compensation for loss of prospective profits. Without limiting any other rights or remedies ARENA may have arising out of or in connection with this Agreement, ARENA may terminate this Agreement or reduce the scope of the Activity effective immediately by giving notice to the Recipient if: the Recipient breaches a material provision of this Agreement where that breach is not capable of remedy; the Recipient breaches any provision of this Agreement and fails to remedy the breach within 30 days after receiving notice requiring it to do so; in the opinion of ARENA, a conflict of interest exists which would prevent the Recipient from performing its obligations under this Agreement; Recipient Contributions or Other Contributions are not used for the Activity in accordance with the timeframes specified in items 4 and 5 of Schedule 4; the Recipient: Abandons the Activity; notifies ARENA of an intention to Abandon the Activity; or states an intention to Abandon the Activity, and does not, when requested by ARENA, demonstrate to ARENA's satisfaction within 14 days that the Recipient will proceed with the Activity; in ARENA's reasonable opinion, it is unlikely that the Recipient will be able to complete a Milestone to ARENA's satisfaction; the completion date for a Milestone has passed and the Recipient has not completed the Milestone; ARENA is satisfied that any statement made in the Application is incorrect, incomplete, false or misleading in a way which would have affected the original decision to approve the provision of the funding under this Agreement; a Related Agreement is terminated by ARENA for default by the Recipient; a Related Commonwealth Agreement is terminated by the Commonwealth for default by the Recipient; or an Insolvency Event occurs in relation to an Activity Participant. Without limitation, for the purposes of clause 38.2(a)(i), each of the following constitutes a breach of a material provision: [Note: This clause may be amended depending on the Recipient and the Activity.] breach of warranty under clause 4.2 (Warranties); failure to comply with clause 5 (Risk management); failure to comply with clause 6 (Community consultation); a failure to comply with clause 18.1 (What Funds can be used for); a failure to comply with clause 21 (Activity Participants, subcontractors and Personnel); a failure to comply with clause 24 (Intellectual Property Rights); a failure to comply with clause 28 (Insurance); a failure to comply with clause 31 (Protection of Personal Information); and a failure to notify ARENA of a conflict of interest under clause 33 (Conflict of interest). If the scope of the Activity is reduced under this clause 38.2: ARENA's liability to pay the funding under this Agreement abates in accordance with the reduction in the Activity; and the Recipient must continue to undertake any part of the Activity not affected by the notice (unless the Recipient, acting reasonably, notifies ARENA that it is not commercially viable to do so). At any time after an Insolvency Event occurs with respect to the Recipient, ARENA, at its absolute discretion: may terminate this Agreement effective immediately by giving Notice to the Recipient; and is entitled to recover from the Recipient, and the Recipient must pay to ARENA, an amount equal to all Funds paid to the Recipient as at the date of termination of this Agreement. The amounts payable by the Recipient to ARENA under clause 38.3(a) will be recoverable by ARENA in accordance with clause 41.2. Without limiting any of ARENA's other rights or remedies, on termination of this Agreement: subject to clauses 36.5 and 38.1(c), ARENA is not obliged to pay to the Recipient any outstanding amount of funding under this Agreement; and ARENA is entitled to exercise any right to recover from the Recipient, including under clauses 19 and 23. Termination of this Agreement does not affect any accrued rights or remedies of a party. Survival The following clauses survive the expiry or termination of this Agreement: Clause 17 (GST); Clause 18 (Use of Funds); Clause 19 (Repayment); Clause 20.2 (Reporting); Clause 20.3 (Evaluation); Clause 23 (Assets); Clause 24 (Intellectual Property Rights); Clause 25 (Moral Rights); Clause 27 (Indemnity); Clause 28 (Insurance); Clause 29 (Acknowledgment, publicity and knowledge sharing); Clause 30 (Confidentiality); Clause 31 (Protection of Personal Information); Clause 32 (Freedom of Information); Clause 34 (Books and records); Clause 35 (Audit and access); Clause 38.3 (Termination for an Insolvency Event with respect to the Recipient); Clause 38.3 (ARENA rights); and Clause 41.2 (Amounts due to ARENA), together with any provision of this Agreement which expressly or by implication from its nature is intended to survive the expiry or termination of this Agreement. Notices and other communications A Notice must be: in writing, in English and signed by a person duly authorised by the sender; and hand delivered or sent by prepaid post or facsimile to the recipient's address for Notices specified in item 21 of Schedule 1, as varied by any Notice given by the recipient to the sender. A Notice given in accordance with clause 40.1 takes effect when it is taken to be received (or at a later time specified in it), and is taken to be received: if hand delivered, on delivery; if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); or if sent by facsimile, when the sender's facsimile system generates a message confirming successful transmission of the entire Notice unless, within one Business Day after the transmission, the recipient informs the sender that it has not received the entire Notice, but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day in the place where the Notice is taken to be received, the Notice is taken to be received at 9.00am on the next Business Day in the place where the Notice is taken to be received.