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ZERO EMISSIONS NOOSA (ZEN) Inc. ALLIANCE AGREEMENT · Attachment 1_ZEN Inc Alliance Agreement 2026-2029
ATTACHMENT 1
Alliance Agreement 2026 - 2029
Between
NOOSA SHIRE COUNCIL ABN 97 969 214121 (Council)
And
ZERO EMISSIONS NOOSA INC.
ABN 74 862 487 515 (ZEN Inc)
1 DEFINITIONS
Activities Means any educational or project related activities that help to
advance the mission and vision of ZEN Inc. These may be funded
by Noosa Council and/or by other means but must be in line with
the mission and stated objectives in Council’s endorsed Climate
Change Response Plan and other supporting endorsed plans and
strategies, as well as ZEN Inc’s relevant three-year Strategic Plan
and relevant Annual Operational Plan.
Agreement Means this Alliance Agreement between Council and ZEN Inc.
Annual Means the operational plan that ZEN Inc. working groups (ZENe
Operational and ZENTAG) complete annually, including targets and Key
Plan Performance Indicators (KPIs) where appropriate, and define the
projects and initiatives that the organisation will undertake in the
following financial year. Budget considerations are based on this
plan and performance is measured against it.
Asset Means any asset or improvement acquired or produced wholly or
partly by the Funding or Funds.
Board Means the ZEN Inc board of directors.
Business Day Means any day other than a Saturday, Sunday, or public holiday in
Queensland, Australia, and includes a day on which government
offices are open for normal business.
Climate Change Means Noosa Council’s endorsed Climate Change Response Plan
Response Plan (2021). This is the primary plan that ZEN Inc references and works
to support Council to deliver.
Confidential With respect to a Party, means the terms of this Agreement, and all
Information documents and information provided or made available by one
Party (Discloser) to the other (Disclosee), or which comes to the
knowledge of a Party in connection with the Agreement which are of
their nature confidential or which the Discloser has identified to the
Disclosee as being confidential, but does not include documents
and information which are in the public domain other than through a
breach of clause 13
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Conflict of Means any actual, potential, or perceived conflict between the
Interest private, financial, professional, personal, or other interests of a
party, its officers, employees, volunteers, contractors, or committee
members, and the party's obligations under this Agreement, where
such conflict could improperly influence, or be reasonably perceived
to influence, the party's decision-making, performance, or exercise
of its responsibilities under this Agreement.
Council Means Noosa Shire Council ABN 97 969 214 121, which is the local
government exercising powers vested under the Local Government
Act 2009 for the Noosa Shire.
Council Logo Means any registered trademarks, indicia, logos, emblems, symbols
or the like which are used by Council to brand and identify itself in
its day to day activities.
Council Material Means any material, including without limitation, any software,
code, design, photographs, drawings, music, film, print, layouts,
documents, scripts, copy, logos and any other materials in any
medium, whether in hard or electronic form provided by the Council
to ZEN Inc to further the purposes and objectives of ZEN Inc
EV & Electrify Means the ZEN Inc annual public event to showcase the transition
Everything Expo to electric vehicles and the electrification of other everyday
household and business activities (e.g. solar, batteries, appliances,
e-mobility among others).
Fault In relation to clause 12, fault means any negligent or wrongful act or
omission or wilful conduct.
Funding Means all monies provided by Council to ZEN Inc under this
Agreement, whether by grant, contribution, subsidy, reimbursement,
or other form of financial assistance, for the purpose of carrying out
the Activities or achieving the outcomes outlined in ZEN Inc’s
Annual Operational Plan.
GST Means the tax imposed under the A New Tax System (Goods and
Services Tax) Act 1999 (Cth) and any related legislation imposing
such tax, including any amendment, replacement, or successor
legislation.
Intellectual Means any and all intellectual and industrial property anywhere in
Property the world (including present and future intellectual property),
including confidential information, trade secrets, know-how or any
information kept confidential, copyright, inventions (including
patents), trademarks, service marks and other related marks,
designs, business names, domain names and company names,
semiconductor rights, eligible layouts and circuit layouts, software,
software programs and source code and plant breeder's rights
whether or not existing at the date of this agreement and whether or
not registered or registrable and includes any and all variations,
modifications or enhancements to each of them together with any
application or right to apply for registration of those rights and
includes all renewals and extensions.
KPI Means the Key Performance Indicators or objective performance
measures which are submitted to Council in ZEN Inc’s Annual
Operational Plan, including discrete actions that must be achieved
as stated in ZEN Inc’s Annual Operational Plan.
Moral Rights Has the meaning given in Part IX of the Copyright Act 1968 (Cth),
and includes the right of attribution of authorship, the right not to
have authorship falsely attributed, and the right of integrity of
authorship.
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Operational Means expenses associated with, or attributable to, the operations
Expenses of ZEN Inc, including:
• Day to day expenses such as employee payments, contractor
payments, accounting expenses, licence fees, advertising,
utilities, insurance, publications, communications, public
relations, education and community engagement expenses.
• Actions to support project development, including project
scoping and planning, project management and project
auditing.
• Actions to support raising funds for projects including
researching and applying for grants and attracting donations,
sponsorships, bequests and other income generating
schemes.
Personnel Includes the officers, employees, agents, representatives, suppliers,
consultants, subconsultants, contractors and subcontractors of a
Party and any other person or entity for whom that Party is
vicariously liable but in respect of Council does not include ZEN Inc.
Project Partner In relation to a ZEN Inc facilitated project, means any person or
organisation (including Council where it has provided project-
specific funding or in-kind support) that contributes cash or in-kind
resources to that project.
Senior Means a person holding a senior management, executive or
Representatives governance position within a Party who has authority to negotiate
and, where possible, resolve a Dispute on behalf of that Party
Specified Acts Means, in relation to any ZEN Inc Program Material, any act or
omission by Council, or any person authorised by or claiming
through Council, that would otherwise infringe an author's Moral
Rights, including:
(a) using, reproducing, publishing, communicating, exhibiting or
adapting the material, in whole or in part, without identifying the
author;
(b) attributing the material to Council or any other person;
(c) altering, editing, adding to, abridging or otherwise modifying the
material, including combining it with other material; or
(d) using the material in any medium, format or context.
Strategic Plan Means a ZEN Inc Board-endorsed plan that identifies key
directions, programs and funding considerations for the medium-
to-long-term timeframe for ZEN Inc and which is completed every
three years.
Term Means the three-year period of this Agreement commencing on 1
July 2026 and expiring on 30 June 2029
ZEN Inc Means any material produced by or on behalf of ZEN Inc, including
Program program promotional material, educational material, website
Material content, data collection through surveys or research and written,
video or audio content.
2 TERM
a) This Agreement operates for the Term, unless terminated earlier in accordance with
this Agreement.
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b) The Parties may review the operation and effectiveness of this Agreement annually
on the anniversary of the commencement date during the Term
c) Prior to the expiry of the Term, the parties may consider extending the agreement
for a further term, or entering into a new Agreement, subject to agreement by both
parties in writing and any required Council approvals.
3 PROGRAM
3.1 The purpose of this Agreement is to establish a framework for collaboration between
Council and ZEN Inc and to provide governance, accountability, reporting and funding
requirements in relation to Council Funding provided to ZEN Inc.
3.2 The parties acknowledge their shared objective of supporting activities that contribute
to:
a) emissions reduction;
b) energy efficiency and renewable energy;
c) active and electrified transport;
d) community resilience and adaptation;
e) sustainable economic development;
f) improved community health and wellbeing; and
g) implementation of relevant Council strategies and plans.
3.3 For the avoidance of doubt, this Agreement does not create a partnership, joint
venture or agency relationship between the parties.
3.4 Funding under this Agreement is subject to annual consideration through Council's
budget and decision-making processes and no provision of this Agreement is to be
interpreted as fettering Council's future budgetary discretion or statutory functions.
4 COUNCIL OBLIGATIONS
4.1 For the purposes of this Agreement, Council will:
a) provide the Funding to ZEN Inc in accordance with clause 6 of this Agreement;
b) work cooperatively with ZEN Inc on activities and projects that align with the
Climate Change Response Plan, and other supporting plans, and that will assist
Council to implement these plans and work towards net zero emissions for the
Noosa Shire.
4.2 Council may nominate a Councillor to attend meetings of the ZEN Inc Board as a non-
voting observer.
4.3 The observer:
a) is not a director of ZEN Inc;
b) has no voting rights in relation to Board decisions;
c) may participate in discussions at the discretion of the Chair;
d) does not have authority to bind Council or ZEN Inc; and
e) attends meetings subject to availability and Council requirements.
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4.4 Council may, subject to available resources, operational requirements and budget
availability, provide access to relevant Council staff, expertise, information and data
where Council considers such support appropriate.
5 ZEN INC. GENERAL OBLIGATIONS
5.1 In accordance with its Strategic Plan, ZEN Inc must:
a) maintain its status as an incorporated not-for-profit association;
b) maintain governance systems appropriate to an organisation receiving public
funding;
c) work collaboratively with Council and relevant community stakeholders in the
identification and development of its program and projects to assist with
implementing the Climate Change Response Plan and other supporting plans to
transition to net zero emissions for the Noosa Shire;
d) support actions required in various Council plans and strategies, via its two
working groups – ZENe and ZENTAG – including but not limited to, the Regional
Climate Action Roadmap, the Cycling and Walking Strategy, Waste to Resource
Plan, Green Economy Plan, the Destination Management Plan, Environment
Strategy, Transport Strategy, Economic Development Strategy;
e) Enhance communication and encourage increased action by promoting the co-
benefits of climate mitigation, adaptation, and resilience measures by delivering
targeted communications in accordance with the KPIs in ZEN Inc’s Annual
Operational Plan;
f) actively seek external grants, sponsorship, donations and other funding
opportunities to support its activities and reduce reliance on Council funding;
g) prepare, implement and review its Strategic Plan;
h) prepare and implement an Annual Operational Plan in accordance with Clause 6;
i) use Council Funding only for approved purposes and Activities in accordance with
the Annual Operational Plan and this Agreement;
j) comply with all applicable laws and regulatory requirements;
k) promptly notify Council in writing of any issue that may materially impact
performance of this Agreement; and
l) regularly conduct surveys and include in the Annual Operational Plan the benefit
that ZEN Inc projects provide to the community.
6 FUNDING OPERATIONAL EXPENSES
6.1 ZEN Inc must submit to Council in writing, by no later than the end of February in each
financial year:
a) a Funding request for Operational Expenses for the next financial year;
b) its proposed Annual Operational Plan for the next financial year with KPIs;
c) the current ZEN Inc Strategic Plan;
d) itemised draft budget;
e) current financial statements;
f) details of any external funding that has been secured; and
g) any other information reasonably requested by Council.
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6.2 Council will consider Funding requests having regard to:
a) Any ongoing commitments as provided for in clause 8.3 of this Agreement;
b) Council’s annual budget position, process and overall funding constraints;
c) Strategic alignment with Council priorities;
d) ZEN Inc’s performance under this Agreement;
e) Achievement of KPIs contained within the Annual Operational Plan; and
f) Acquittal and management of previous funding.
6.3 The amount of Funding from Council towards the Operational Expenses for the
financial year will be determined by Council as part of its annual budget process and in
line with the factors in clause 6.2 of this Agreement and will be subject to clauses 9
and 10.
7 FUNDING PROJECTS
7.1 As far as is possible ZEN Inc will fund the majority of its projects through grants,
donations and sponsorships and in-kind contributions from third parties, including its
Project Partners.
7.2 In addition to seeking third party funding ZEN Inc may also choose to apply for
relevant grants under Council’s Grant Programs. These will be assessed on merit,
competitively against other applications received and the total amount allocated to the
relevant grants program.
7.3 In addition to funding the Operational Expenses of ZEN Inc under clause 6, Council
may at its sole discretion, separately engage ZEN Inc from time to time to provide
services on a commercial basis, with any such engagement:
a) entirely separate from the funding arrangements under this Agreement;
b) does not create any obligation on Council to procure services from ZEN Inc or to
provide ZEN Inc with any minimum volume, value or exclusivity of work;
c) is subject to Council complying with all applicable legislative, regulatory and policy
requirements relating to procurement, contracting and expenditure, including any
requirements to seek quotations, conduct a tender process, engage approved
suppliers or obtain approvals;
d) will be subject to a separate contract, purchase order, work order, quotation
acceptance or other written agreement issued or approved by Council; and
e) will be performed in accordance with Council’s standard terms and conditions and
at rates, fees and charges agreed between the parties for the relevant
engagement.
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7.4 Nothing in this Agreement constitutes a standing offer, preferred supplier arrangement,
panel appointment or commitment by Council to engage ZEN Inc for any future
services.
8 PAYMENTS
8.1 How payments are to be made
a) Council shall pay the approved Funding to ZEN Inc by electronic transfer to a bank
account (or accounts) as notified in writing to Council by ZEN Inc, with such bank
accounts being in the name of ZEN Inc and such accounts being solely under the
control of ZEN Inc;
b) Payments of the Funding will be made in half-yearly equal instalments in advance
upon a receipt of a valid tax invoice from ZEN Inc dated on or after:
i) 1 July for the first payment; and
ii) 1 January for the second payment;
c) ZEN Inc will regularly review its Strategic Plan outlining the goals and objectives for
ZEN Inc so that its purpose and objectives will be achieved;
d) ZEN Inc will deliver an Annual Operational Plan setting out the priority actions for
the next financial year in order to achieve the goals and objectives of the Strategic
Plan;
e) Council will assess the adequacy of the targets and KPIs that ZEN Inc outlines in
the Annual Operational Plan against the alignment with the Climate Change
Response Plan and other supporting plans where appropriate;
f) Payment of Funding for contribution to Operational Expenses for 2026/27 to the
amount of $148,000 will be made in accordance with clause 8.1b) upon a receipt of
a valid tax invoice from ZEN Inc; and
g) Payments beyond 2026/2027 are subject to future Council approval through the
annual budget process.
8.2 Payments are subject to GST where applicable having regard to the type of
transaction under Australian Taxation legislation.
8.3 Before ZEN Inc commits to any purchase, contract, undertaking or activity that has
financial commitments beyond the period of approved Funding and for which
purchase, contract, undertaking or activity ZEN Inc will require Council Funding, ZEN
Inc must apply for and obtain approval from Council prior to ZEN Inc making the
commitment.
8.4 Right to suspend Funding
a) Without limiting Council's rights at law or otherwise under this Agreement, if after
requesting ZEN Inc to Show Cause in accordance with clause 14.1, Council is
satisfied that:
i) ZEN Inc does not have the capacity to manage the Funding; or
ii) ZEN Inc does not have the capacity to perform the program in line with its
Strategic or Annual Operational Plan; or
iii) Council is unable to provide the Funding due to any legal impediment, then
the Council may at its sole discretion:
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Suspend payment of the Funding or an instalment of the Funding (whether in
whole or in part) until the matters notified in the Show Cause Notice are
remedied.
b) If the matters in the Show Cause Notice are not remedied within the time period in
the notice, then Council may take action in accordance with clause 14.
9 OPERATIONAL & REPORTING OBLIGATIONS OF ZEN INC
9.1 ZEN Inc must:
a) obtain approvals to do work or conduct other activities on Council owned or
managed lands or as required under State or Federal legislation prior to work or the
Activity commencing;
b) provide recognition of Council Funding support in written material, advertising,
media, signage and reporting documents in relation to projects that Council has
provided specific project related funded to ZEN Inc, as well as in relation to broader
program publicity where appropriate; and
c) In connection with any actual, potential, or perceived conflict of interest in relation to
Activities undertaken in relation to this Agreement, disclose the existence of the
interest and disclose all material facts to Council.
9.2 ZEN Inc must monitor the ZEN Inc program Activities and submit written reports to
meet Council’s acquittal requirements, including but not limited to:
a) Provide to Council an Annual Report detailing the utilisation of the Funding in
relation to the delivery of the Annual Operational Plan for the relevant Financial
Year, or otherwise in such form and at such times as reasonably required by
Council.
i) The Annual Report is to be prepared by February for each year of the Term to
help inform the next budget process and should include:
A. Projects and their current status;
B. Progress against relevant targets and KPIs set in its Annual Operational
Plan;
C. Leveraging achieved from Council Funding to ZEN Inc calculated as
total value of Funded projects compared with Council approved project
Funding;
D. Growth in donations (deductible gift recipient);
E. Percentage of projects completed within target timeframes;
F. Range of methods of communication utilised and estimated audience
reach;
G. Relevant community feedback received throughout the year; and
H. Other relevant information.
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b) Provide an audited financial report for the financial year and submit it to Council
no later than February each year, in line with ZEN Inc’s current reporting period for
the preceding year.
i) The audited financial report is to identify the use of the Funding provided by
Council for the ZEN Inc Activities. ZEN Inc must maintain financial records in
accordance with legislative requirements that identify receipt and expenditure
of the Funding for ZEN Inc so that, at all times, Funding for the ZEN Inc
program is identifiable and ascertainable.
c) If required by Council, provide ad-hoc reports within 30 days of such request, or
lesser period setting out:
i) Any significant developments in or concerning the ZEN Inc activities; and,
ii) Any significant delays or difficulties encountered in performing the ZEN Inc
program in accordance with this Agreement.
d) ZEN Inc must permit Council or its agent or representative to have access to ZEN
Inc’s records relating to funding provided by Council and must cooperate with any
audit or information request carried out or requested by Council.
10 MANAGEMENT OF COUNCIL FUNDING
10.1 Use of Funding
a) ZEN Inc must only expend the Funding:
i) For undertaking the ZEN Inc Activities and purposes that are necessarily
related to the program, for which the Funding was provided;
ii) To achieve the KPIs in its Annual Operational Plan; and
iii) Otherwise in accordance with the terms and conditions of this Agreement
b) ZEN Inc must not use the Funding, any interest acquired from the Funds, any Assets
or the existence of this Agreement as any form of security for any purpose, unless
Council has given its prior written approval.
10.2 Repayment of funding
a) If ZEN Inc breaches a term of this Agreement and is issued a Show Cause Notice by
Council in accordance with clause 14.1 and fails to remedy a breach within the
timeframe stipulated in the notice, ZEN Inc is liable, on demand from Council to
repay to Council the whole of the unspent Funding provided to ZEN Inc (or the
amount of Funding paid as the case may be).
b) If ZEN Inc fails to achieve, or only partly completes an Activity or KPI, and is issued a
Show Cause Notice by Council in accordance with clause 14.1 and fails to comply
with the notice within the timeframe stipulated, ZEN Inc is, subject to paragraph d) of
this clause, liable to repay to Council the amount of unspent money as at the date of
the Show Cause Notice and Council may recover that money from ZEN Inc as a debt
due to Council;
c) If ZEN Inc fails to spend the Funding, or any part of it, on the ZEN Inc Activities or
KPIs (Misapplied Funds), ZEN Inc is, subject to paragraph d) of this clause, liable to
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repay to Council the amount of Misapplied Funds and unspent Funding and Council
may recover that money from ZEN Inc as a debt due to Council.
d) If, at the end of the Term of this Agreement, some of the Funding has not been spent
or committed to Activities or KPIs, that amount must be repaid to Council (and the
amount may be recovered as debt due to Council) unless Council provides written
permission for all, or some of the amount to be spent in some other manner that
Council directs.
11 INTELLECTUAL PROPERTY
11.1 Intellectual Property in Council Material
a) Council will retain ownership of all Council Material including Intellectual Property in
that Council Material but grants ZEN Inc a royalty-free, world-wide, non-exclusive
licence (including a right of sub-licence to a third party), to use, reproduce, adapt and
exploit the Council Material on the condition that this licence is only granted for the
purposes of this Agreement (Licence).
b) Council may, pursuant to the Licence, authorise the use of any Council Logo by ZEN
Inc in such manner and subject to such conditions as Council deems appropriate in
its absolute discretion subject to it retaining full ownership of the Council Logo. ZEN
Inc agrees that any Council Logo will only be used for a project where Council is
working with ZEN Inc on that project or Funding the project or in relation to broader
program or project publicity that aligns with the Climate Change Response Plan.
c) Upon the conclusion of the Term of this Agreement or an earlier termination of this
Agreement ZEN Inc will not retain any Council Material remaining in ZEN Inc's
possession and will immediately return all physical expressions of the Council
Material to Council and will destroy any electronic copies thereof, unless Council
notifies ZEN Inc otherwise in writing.
d) Any adaptations, variations or extensions made to Council Material during the term of
the Licence, shall become, upon its creation, the property (including Intellectual
Property) of Council.
11.2 Intellectual Property in ZEN Inc Program Material and facilitated projects
a) Subject to clause 11.2(b), ZEN Inc retains ownership of all ZEN Inc Program
Material, including Intellectual Property in that ZEN Inc Program Material, but grants
(or must procure for) Council a perpetual, irrevocable, royalty-free, worldwide, non-
exclusive licence (including a right to sub-license to Council’s Personnel) to use,
reproduce, adapt, publish and communicate any ZEN Inc Program Material created
wholly or partly with the Funding, for the purposes of Council’s reporting, community
engagement, climate change response program and the performance of its local
government functions.
b) Ownership of Intellectual Property from ZEN Inc facilitated projects will be negotiated
on a project-by-project basis and, where no written agreement on IP ownership is in
place before the project commences, as follows:
i) Prior Intellectual Property brought to a project by a Project Partner will remain
the property of that Partner;
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ii) Ownership of commercialisable Intellectual Property (e.g. patents) will be
shared between Project Partners according to the financial contribution (cash
and in-kind) to the project by each Partner;
iii) Ownership of non-commercialisable Intellectual Property will be shared as per
part (ii) but with each Project Partner having the right to reproduce,
communicate, adapt, extend, and utilize that IP;
iv) Subject to parts (ii) and (iii), ownership of copyright in any published work is
determined in accordance with the Copyright Act 1968 (Cth); and,
v) Use of images, artwork or other material owned by a third party is subject to
the permission of that third party.
11.3 Dealing with Intellectual Property
ZEN Inc warrants that it is entitled, or will be entitled at the relevant time, to deal with
the Intellectual Property in both the Council Material and the ZEN Inc Program
Material in accordance with this clause 11.
11.4 Consent to Specified Acts
a) ZEN Inc agrees:
i) To obtain from each author of any ZEN Inc Program Material a written
consent to the Specified Acts (whether occurring before or after the consent is
given) which extends directly or indirectly to the performance of the Specified
Acts by Council or any person claiming under or through Council;
ii) To obtain from each author of any ZEN Inc Program Material a written
consent to the Specified Acts (whether occurring before or after the consent is
given) which extends directly or indirectly for Council's benefit in relation to
Council’s licensed use of such material; and,
iii) Upon request, to provide the executed original of each such consent to
Council.
12 INDEMNITY & LIABILITY
12.1 General indemnity
ZEN Inc indemnifies (and agrees to keep indemnified) Council against any:
a) Cost or liability incurred by the Council;
b) Loss of or damage to property of the Council; or
c) Loss or expense incurred by the Council in dealing with any claim against it, including
legal costs and expenses on a solicitor/own client basis and the cost of time spent,
resources used, or disbursements paid by the Council;
arising from:
i. Any act or omission by ZEN Inc or ZEN Inc's Personnel (whether voluntary or
paid) where there was fault on the part of the person whose conduct gave rise to
that cost, costs, liability, loss, damage or expense;
ii. Any breach by ZEN Inc of this Agreement; or
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iii. The use by Council of the material created for the purpose of this Agreement,
including any claims by third parties about the ownership or right to use
Intellectual Property or Moral Rights.
12.2 Reduction of scope
ZEN Inc’s liability to indemnify Council under this clause will be reduced proportionally
to the extent that any act or omission involving fault on the part of Council contributed
to the relevant cost, liability, loss, damage or expense.
12.3 Preservation of other rights
The right of Council to be Indemnified under this clause is in addition to, and not
exclusive of, any other right power or remedy provided by law, but Council is not entitled
to be compensated in excess of the amount of the relevant cost, liability, loss, damage
or expense.
12.4 Liability
To the extent permitted by law, Council shall not be liable to ZEN Inc for any loss of
profits, loss of opportunity, loss of agreement or loss of business incurred by ZEN Inc
arising out of or in connection with the Agreement however caused, whether in tort
(including negligence), contract, statute, equity or otherwise.
13 CONFIDENTIALITY
13.1 A Party must not disclose the Confidential Information of another Party to any other
person except:
(a) with the consent (in the form of written approval) of the Party whose Confidential
Information it is;
(b) as required by law;
(c) to its professional advisors, auditors and employees in furtherance of the
purpose and objectives of the Agreement, on the basis that the person to whom
the Confidential Information is disclosed keeps the information confidential;
(d) in respect of disclosure by Council only, for the purposes of enabling Council to
properly discharge its functions as a local government authority.
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13.2 ZEN Inc agrees that it must not make a press release, announcement or other public
statement about this Agreement or the subject matter of this Agreement, except as
required by law or with the prior written approval of Council.
13.3 If a Party becomes aware of or reasonably suspects a breach of this clause 13 that
Party will immediately notify the other Party to this Agreement and take reasonable
steps to prevent or stop the suspected or actual breach.
14 TERMINATION
14.1 Show Cause
(a) If ZEN Inc commits a breach of the Agreement or its constitution, then Council
may give ZEN Inc a notice to show cause (a Show Cause Notice). The Show
Cause Notice shall:
(i) state it is a notice under this clause 14.1;
(ii) set out details of the alleged breach;
(iii) state that ZEN Inc is required show cause in writing why Council
should not exercise a right referred to in clause 14.1(b); and
(iv) state the date and time by which ZEN Inc must show cause to Council
(which time must be a reasonable period having regard to the nature
of the breach).
(b) If ZEN Inc fails to show reasonable cause by the date and time stated in the
Show Cause Notice, Council may immediately terminate the Agreement by
written notice to ZEN Inc.
14.2 Other Termination Rights
In addition to the rights to terminate in clause 14.1 or provided for elsewhere in this
Agreement Council may terminate this Agreement with immediate effect by giving notice
to ZEN Inc if:
(a) ZEN Inc breaches a material provision of this Agreement or its constitution
and that breach is not, in the opinion of the Council, capable of remedy;
(b) ZEN Inc notifies the Council that the activities are not to proceed; or
(c) ZEN Inc becomes insolvent, subject to administration, unable to meet its
debts, or decides to windup itself.
14.3 Termination for convenience
(a) Council may terminate this Agreement for convenience at any time by giving
ZEN Inc 60 days' written notice.
(b) Without limitation, Council may exercise this right where there is a change in
Council's strategic priorities, budget, funding availability, financial
circumstances, governance arrangements, or following the election of a new
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Council. Upon termination, Council is not required to provide any further
Funding under this Agreement.
14.4 Consequences of termination or expiry
(a) Upon termination or expiry of this Agreement ZEN Inc must:
(i) Stop or reduce the performance of ZEN Inc obligations related to the
Funding as specified in the notice;
(ii) Take all available steps to minimise loss resulting from the termination
or reduction;
(iii) Continue work on any part of the ZEN Inc program not affected by the
notice; and
(iv) Immediately return to Council any Funding relating to the part of the
ZEN Inc Activities affected by the notice and that has not, in Council's
opinion:
(A) Been spent in accordance with this Agreement; or
(B) Been committed by ZEN Inc in accordance with this Agreement
and is payable as a current liability.
(v) Or otherwise deal with any Funding held by ZEN Inc as directed by
Council.
(b) The Licence granted under clause 11.1 will also come to an end upon
termination or expiry of this Agreement, such that ZEN Inc must cease use of
all Council Material and all Council Material must be handled in accordance
with clause 11.1c).
14.5 Council's liability upon termination for default
Where Council terminates this Agreement under clause 14.1(b) or clause 14.2, Council:
(a) Will be liable only for payments due and owing to ZEN Inc under the payment
provisions of this Agreement as at the date of the notice; and
(b) Will be entitled to recover from ZEN Inc:
(i) Any part of the Funding which has not been legally committed for
expenditure by ZEN Inc in accordance with this Agreement and is not
payable by ZEN Inc as a current liability by the date of termination; or
(ii) Any part of the Funding which has not, in the Council’s opinion, been
spent by ZEN Inc in accordance with this Agreement; and
(iii) Where ZEN Inc becomes liable to repay the Funds to the Council under
clause 10.2.
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14.6 Surviving provisions, rights and obligations
(a) Subject to this Agreement, the termination or expiry of this Agreement does
not affect any rights, obligations or liabilities that a Party has accrued under
this Agreement before such termination or expiry.
(b) Subject to this Agreement, the rights and obligations under clauses 11, 12,
13, 14.4, 14.6, and 16 of this Agreement, together with any other provisions of
this Agreement which by their nature are intended to survive the termination
or expiry of the Agreement, will continue in full force and effect after the
termination or expiry of this Agreement
15 DISPUTE RESOLUTION AND MEDIATION
15.1 Unless the Parties otherwise agree, any dispute between the Parties arising out of or
in connection with this Agreement must be resolved in accordance with this clause
1.1(b)
15.2 If a Party considers that a dispute has arisen between the Parties arising out of or in
connection with this Agreement, then the Party must give written notice to the other
Party, setting the particulars of the dispute and stating that the notice is given under
this clause 1.1(b) (Notice of Dispute).
15.3 Within 30 days after the Notice of Dispute, or such other period the Parties agree in
writing, the Senior Representatives of each Party shall confer to attempt to resolve the
dispute in good faith. Both parties shall make genuine efforts to resolve any dispute
arising out of, or in connection with this Agreement by negotiation and discussion.
15.4 If the dispute cannot be resolved during this meeting of the Senior Representatives,
any Party may refer the dispute to an agreed, qualified independent person to mediate
between both parties. In the event the parties are unable to agree on the independent
person, either party may refer this matter to the President of the Queensland Law
Society to nominate an appropriate person.
15.5 Nothing in this clause 1.1(b) shall prejudice a right of a party to institute proceedings to
enforce payment under this Agreement or to seek injunctive or urgent declaratory
relief.
15.6 Notwithstanding the existence of a dispute, the Parties shall, subject to clauses 14 and
15.5, continue to perform their obligations under the Agreement.
16 PRIVACY
16.1 Where ZEN Inc or its Personnel have access to or are responsible for holding
Personal Information, ZEN Inc must:
a) comply with parts 1 and 3 of chapter 2 of the Information Privacy Act 2009 as if
ZEN Inc were Council; and
b) ensure that the Personal Information is protected against loss, unauthorised
access, use, modification or disclosure, and against other misuse; and
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c) not use the Personal Information other than for the purpose of the Agreement,
unless required or authorised by law; and
d) not disclose the Personal Information without the written agreement of Council,
unless required or authorised by law; and
e) not transfer the Personal Information outside Australia without the consent of
Council; and
f) ensure that its Personnel do not access, use or disclose the Personal Information
other than in the performance of their duties; and
g) immediately notify Council if it becomes aware that a disclosure of Personal
Information is, or may be, required or authorised by law;
h) fully cooperate with Council, to enable Council to respond to applications for
access to, or amendment of, a document containing an individual’s Personal
Information and to privacy complaints; and
i) comply with such other privacy and security requirements as Council reasonably
advises ZEN Inc from time to time.
16.2 Where Council is not reasonably satisfied, on the basis of information provided to it by
ZEN Inc, that proper practices are in place to ensure that the privacy and disclosure of
information requirements for Personal Information are being observed and maintained,
Council may at any time require ZEN Inc to make its Personnel aware of its
obligations, in accordance with this clause 16 including, when requested by Council,
requiring any subcontractor to promptly sign a privacy undertaking in a form approved
by Council.
17 GENERAL PROVISIONS
17.1 Audit and access
a) ZEN Inc agrees to give Council, or any persons authorised in writing by the Council,
access to the premises where obligations under this Agreement are being carried
out.
b) ZEN Inc agrees to permit those persons to inspect and take copies of any material
relevant to this Agreement.
17.2 Insurance
a) ZEN Inc agrees:
i. To effect and maintain adequate liability insurances specific to the operation of a
Not-for-Profit organisation, and as a minimum, public liability, product and
director & officer liability, volunteers and employee work cover.
ii. On request to provide proof of insurance acceptable to Council for its purposes
under this Agreement.
b) This clause continues in operation for so long as any obligations remain in
connection with this Agreement.
17.3 Relationship of parties
a) ZEN Inc is not by virtue of this Agreement an officer, employee, partner or agent of
the Council, nor does ZEN Inc have any Power or authority to bind or represent the
Council. Also, and for the avoidance of doubt, the parties to this Agreement:
i. Are not carrying on a business in common with a view to profit; and
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ii. Under a not-for-profit model it is expected that any profits from the EV &
Electrify Everything Expo or other event would go back into ZEN Inc’s
ongoing and/or broader program delivery.
b) ZEN Inc agrees:
i. Not to misrepresent its relationship with Council; and
ii. Not to engage in any misleading or deceptive conduct in relation to the ZEN
Inc program.
17.4 Waiver
a) A failure or delay by a party to exercise any right or remedy it holds under this
Agreement or at law does not operate as a waiver of that right.
b) A single or partial exercise by a party of any right or remedy it holds under this
Agreement or at law does not prevent the party from exercising the right again or to
the extent it has not fully exercised the right.
17.5 Assignment
ZEN Inc cannot assign its obligations, and agrees not to assign its rights, under this
Agreement without Council's prior written approval.
17.6 Applicable law and jurisdiction
a) This Agreement is governed by the law of Queensland and the law of the
Commonwealth of Australia in force in Queensland.
b) The Parties submit to the jurisdiction of the Courts of Queensland, relevant Federal
Courts and Courts competent to hear appeals from them.
17.7 Amendments
This Agreement can only be amended by an instrument in writing signed by both
parties.
17.8 Counterparts
This Agreement may be executed in any number of counterparts and all counterparts
taken together make one instrument.
17.9 Date of this Agreement
This Agreement shall come into existence upon, and be dated as at, the date of the
mutual exchange of counterparts executed in accordance with relevant law (or such
other date as the Parties may otherwise agree in writing).
17.10 Electronic exchange and execution
The Parties acknowledge and agree that this Agreement may be executed
electronically in a manner that complies with applicable law, and exchanged
electronically by email between the Parties or their legal representatives. A scanned
copy of this Agreement which has been executed by a Party may be relied upon by
each Party to the same extent as if it was an original of this Agreement executed by
the Party.
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EXECUTED AS AN AGREEMENT
EXECUTED for and on behalf of NOOSA
SHIRE COUNCIL ABN 97 969 214 121 by
its duly authorised representative in the
presence of:
Signature of Witness [Signature of Delegated Officer]
Print Name
Date
EXECUTED by ZERO EMISSIONS NOOSA
INC
ABN 74 862 487 515 by the President and
Secretary under seal in accordance with its
Articles of Association in the presence of:
[Signature of President]
Signature of Witness
[Signature of Secretary]
Print Name
Date
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