Black Hawk Request for Submission Draft Deed of Transfer.pdf

ANNEX C TO CONDITIONS OF SUBMISSION
DRAFT DEED OF TRANSFER

This DEED OF TRANSFER

BETWEEN

The Commonwealth of Australia represented by the Department of Defence ABN 68 706 814 312 (the
“Commonwealth”)

AND

[…INSERT RECIPIENT…][…INSERT ABN…][…INSERT ADDRESS…] (the “Recipient”).

RECITALS
A.
The Commonwealth is the owner of the Assets.
B.
The Assets are no longer required for the Commonwealth’s operational purposes.
C.
The  Recipient  has  informed  the  Commonwealth  that  the  Recipient  has  the  capacity  to  purchase  the
Assets.
D.
The  Recipient  has  offered  to  receive  a  transfer  of  the  Assets  from  the  Commonwealth  so  that  the
Assets can be used by the Recipient for the Permitted Use.
E.
The Commonwealth has agreed to the Recipient’s offer on the terms set out in this Deed.

THE PARTIES AGREE AS FOLLOWS

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1
INTERPRETATION
1.1
Definitions
1.1.1
In this Deed, unless the contrary intention appears:
“AECA” means the Arms Export Control Act 1976 (US).
“Aircraft” means an Asset identified in Annex A, Attachment A as an Aircraft.
“As Is, Where Is” means the Recipient acquires the Assets in the condition and state of repair in
which, and at the location at which, they are offered for collection, with all faults and defects.
“Asbestos Containing Material” or “ACM” has the meaning given in sub-regulation 5(1) of the Work
Health and Safety Regulations 2011 (Cth).
“Assets” means the asset or assets described in Item 1 of Attachment A.
“Authorisation”  means  a  licence,  accreditation,  permit,  registration,  regulatory  approval  or  other
documented  authority  (however  described),  required  by  law  and  necessary  for  any  Use  of  the
Assets or the carrying out of activities referred to in clause 3.2.
“Collection Date” means, in relation to any particular Assets or Tranche, the time and date on which
the Recipient actually commences collection of the Assets or Tranche.
“Collection Due Date” means, in relation to any particular Assets or Tranche, the time and date for
collection  of  those  Assets  or  that  Tranche  set  out  in  Item  6  of  Attachment  A  or  such  later  date
notified to the Recipient by the Commonwealth from time to time in writing.
“Collection  and  Transportation  Plan”  means  the  plan  prepared  by  the  Recipient  regarding  the
collection of the Assets if required by, and as referred to in, Item 9 of Attachment A.
“Commonwealth  Representative”  means  the  person  holding  or  performing  the  office  identified  in
Item 3 of Attachment A or any other person appointed pursuant to this Deed as the Commonwealth
Representative from time to time.
“Corporations Act” means the Corporations Act 2001 (Cth).
“Deed” means this document and includes al  attachments, schedules and annexes.
“Defence Location” has the meaning given in Item 2 of Attachment A.
“EAR” means USA Export Administration Regulations.
“Effective Date” means the day on which this Deed is signed by the last party to sign it.
“FMS”  means  acquisition  via  the  USA  Foreign  Military  Sales  process  which  makes  the  materiel
acquired subject to Section 3 of AECA.
“Government  Furnished  Equipment”  means  any  equipment  or  material  which  is  loaned  by  the
Commonwealth to the Recipient on a temporary basis to assist the Recipient to collect, transport or
otherwise make Use of the Assets.
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated
taxation legislation.
“Insolvency Event” means, in respect of a person:
a.
the person becoming bankrupt or insolvent;
b.
the person becoming subject to one of the forms of external administration provided for in
Chapter 5 of the Corporations Act, including:
(i)  the appointment of a person to administer a scheme or compromise in relation to the
person in accordance with Part 5.1 of the Corporations Act;
(ii)  the appointment of a controller or managing controller to the whole or any part of the
assets or undertakings of the person in accordance with Part 5.2 of the Corporations
Act;
(iii)  the appointment of an administrator under Part 5.3A of the Corporations Act in relation
to the person; or
(iv)  the appointment of a liquidator or provisional liquidator in relation to the person;
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c.
the person becoming subject to any form of administration under the laws of a non-
Australian jurisdiction which is the same as, or substantially equivalent to, one of those
referred to in paragraph b of this definition;
d.
the person is wound up by resolution or an order of the court;
e.
the person suffers execution against any of its assets which has an adverse effect on the
Recipient’s ability to perform its obligations under this Deed;
f.
the person makes an assignment of its estate for the benefit of creditors or enters into any
arrangement or composition with its creditors;
g.
the person becomes an insolvent under administration; or
h.
the person ceases to carry on business.
“Intellectual Property” means  all copyright  and all rights in relation to  inventions (including patent
rights),  registered  and  unregistered  trademarks  (including  service  marks),  registered  and
unregistered designs, and circuit layouts, and any other rights resulting from intellectual activity in
the industrial, scientific, literary and artistic fields recognised in domestic law anywhere in the world.
“Inventory  Items”  means  Assets  other  than  Aircraft  or  data,  as  further  described  in  Item  1  of
Attachment A.
“ITAR” means the International Traffic in Arms Regulations (USA).
“Jurisdiction” means the jurisdiction set out in Item 5 of Attachment A.
“Loss” means any liability, loss (including economic loss), damage, cost (including the cost of any
settlement  and  legal  costs  and  expenses  on  a  solicitor  and  own  client  basis),  compensation  or
expense.
“Notifiable Incident” has the meaning given in sections 35 to 37 of the Work Health and Safety Act
2011 (Cth).
“Payment Due Date” means the date on which payment for the Assets, or payment of an instalment
for a Tranche of the Assets, is due as specified in Item 7 of Attachment A.
“Permitted Use” means the use which the Recipient is permitted to make of the Assets, as set out
in Item 8 of Attachment A.
“PPS Security Interest” means a security interest that is subject to the PPSA.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Problematic  Source”  means  a  source  of  ionising  or  non-ionising  radiation,  from  a  material  or
apparatus,  that  is  required  to  be  licensed  with  the  Australian  Radiation  Protection  and  Nuclear
Safety Authority.
“Problematic Substances” means:
a.
any substance identified as having ozone depleting potential, or any gas identified as a
Synthetic Greenhouse Gas, in the Ozone Protection and Synthetic Greenhouse Gas
Management Act 1989 (Cth) or any regulations made under that Act;
b.
any dangerous goods as defined in the Australian Code for the Transport of Dangerous
Goods by Road and Rail (extant edition and as amended); or
c.
any hazardous chemicals as defined in sub-regulation 5(1) of the Work Health and Safety
Regulations 2011 (Cth).
“Purchase Price” means the price specified in Item 7 of Attachment A, but if Item 7 of Attachment A
does not specify a Purchase Price then the Purchase Price is taken to be nil.
“Recipient Representative” means the person holding or performing the office identified in Item 4 of
Attachment A or any other person appointed pursuant to this Deed as the Recipient Representative
from time to time.
“Relevant Documents” means any documents included in Attachment E, if any.
“Special Conditions” means the conditions set out in Item 11 of Attachment A.
“Specific Requirements” means the requirements set out in Attachment D.
“Tranche” has the meaning given in Item 1 of Attachment A.
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“Transfer Authorisation” means authorisation in writing given or required to be given by the United
States Government, in accordance with the ITAR, EAR or the AECA authorising retransfer and new
end use of the Assets.
“USA” means the United States of America.
“Use”  means  any  activity  which  the  Recipient  performs  in  relation  to  the  Assets,  and  which  may
include  the  collection,  transportation,  remediation,  maintenance,  storage,  Permitted  Use,  display,
destruction  or  disposal  of  the  Assets,  whether  or  not  such  Use  is  authorised  or  permitted  by  this
Deed or constitutes a breach of this Deed.
“WHS Legislation” means:
a.
the Work Health and Safety Act 2011 (Cth) and the Work Health and Safety Regulations
2011 (Cth); and
b.
any corresponding WHS law as defined in section 4 of the Work Health and Safety Act
2011 (Cth).
“Working Day” in relation to the doing of an action in a place, means any day in that place other
than:
a.
a Saturday, Sunday or public holiday; or
b.
any day within the two-week period beginning on the first Saturday that falls before
Christmas Day (or beginning on Christmas Day when it falls on a Saturday).
1.2
Interpretation
1.2.1
In this Deed, unless the contrary intention appears:
a.
headings are for the purpose of convenient reference only and do not form part of this
Deed;
b.
the singular includes the plural and vice-versa;
c.
a reference to one gender includes the others;
d.
a reference to a person includes a body politic, body corporate or a partnership;
e.
if the last day of any period prescribed for the doing of an action falls on a day which is not
a Working Day, the action shall be done no later than the end of the next Working Day;
f.
a reference to an Act (other than AECA) is a reference to an Act of the Commonwealth,
State or Territory of Australia, as amended from time to time, and includes a reference to
any subordinate legislation made under the Act;
g.
a reference to a clause includes a reference to a subclause of that clause;
h.
a reference to a ‘dol ar’, ‘$’, ‘$A’ or ‘AUD’ means the Australian dollar unless otherwise
stated;
i.
a reference to a ‘day’ means a calendar day;
j.
a reference to a specification, publication, Commonwealth policy or other document is a
reference to that specification, publication, Commonwealth policy or document, in effect on
the Effective Date, or alternatively, a reference to another version of the document if
agreed in writing between the parties;
k.
the word ‘includes’ in any form is not a word of limitation; and
l.
a reference to a party includes that party’s administrators, successors, and permitted
assigns, including any person to whom that party novates any part of this Deed.
2
DEED IS EFFECTIVE
2.1
Effective Date
2.1.1
This Deed comes into effect on the Effective Date.
2.1.2
It is a condition of this Deed that Transfer Authorisation for the transfer of the Assets to the
Recipient is obtained within 6 months of the Effective Date.
2.1.3
If the Transfer Authorisation described in clause 2.1.2 is not obtained within 6 months of the
Effective Date, the Commonwealth may terminate this Deed at any time thereafter immediately
upon giving written notice to the Recipient.
2.1.4
Following a termination described in clause 2.1.3, neither party will be liable to the other for any
loss, costs or expenses arising from a termination of the Deed under this clause 2.1. Termination
of this Deed under this clause 2.1 is without fault by either party.
2.1.5
For the avoidance of doubt, the parties may at any time agree in writing to extend the period of time
described in clauses 2.1.2 and 2.1.3 by which Transfer Authorisation may be obtained.
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3
TERMS OF TRANSFER
3.1
Transfer of Assets
3.1.1
Subject to this Deed:
a.
the Recipient accepts the Assets on the terms and conditions of this Deed;
b.
the Recipient owns the Assets on and from the date on which title passes to the Recipient
in accordance with clause 3.11; and
c.
the Recipient accepts all cost, risk and responsibility arising from, and in connection with,
the Assets on and from the Collection Due Date.
3.2
Use of the Assets
3.2.1
The Recipient shall:
a.
only use the Assets for the Permitted Use;
b.
not use the Assets in a manner that, in the Commonwealth’s reasonable opinion, brings, or
is likely to bring, the Commonwealth into disrepute;
c.
not undertake any action which may constitute an infringement of Intellectual Property
rights in respect of the Assets or permit or authorise any person to do so;
d.
Use the Assets in a manner that ensures, so far as reasonably practicable, the health and
safety of persons and complies with the Collection and Transportation Plan, this Deed and
all applicable laws including the WHS Legislation and export control laws (foreign and
domestic);
e.
ensure the Assets are secured in accordance with this Deed and all applicable laws; and
f.
not transfer or dispose of the Assets other than in accordance with clause 3.12.
3.2.2
The Commonwealth may immediately terminate this Deed (in whole or in part) for default under
clause 3.26 by giving notice in writing to the Recipient if the Recipient fails to comply with any of its
obligations under clause 3.2.1.
3.3
Specific Requirements
3.3.1
Each party shall comply with the Specific Requirements applicable to that party.
3.4
Special Conditions
3.4.1
Each party shall comply with the Special Conditions applicable to that party.
3.4.2
The Commonwealth may immediately terminate this Deed for default under clause 3.26 by giving
notice in writing to the Recipient if the Recipient fails to comply with any of the Special Conditions
which are applicable to the Recipient.
3.5
Relevant Documents
3.5.1
Each party shall comply with the obligations applicable to that party set out in, or in any document
specified in, Attachment E.
3.5.2
To the extent that any documents forming part of Attachment E do not contain obligations, then
they are provided or referenced for information only.
3.6
Purchase Price and Payment
3.6.1
All prices specified in this Deed are unalterable.
3.6.2
The Recipient shall pay the Purchase Price to the Commonwealth in accordance with Item 7 of
Attachment A and in full, without any set-off, counter-claim, condition, abatement, deduction or
withholding for any reason.
3.6.3
If Attachment A specifies or references a Payment Due Date or a number of Payment Due Dates
for instalments, then the Recipient must ensure that the Commonwealth receives the relevant
amount(s) in cleared funds by the applicable Payment Due Date(s).  If the Purchase Price is stated
to be payable in instalments, then without limiting its other rights under this Deed, the
Commonwealth may suspend its performance of this Deed if the Recipient fails to pay any
instalment.
3.6.4
Unless expressly stated otherwise in Item 7 of Attachment A:
a.
the Purchase Price is exclusive of all taxes, duties and government charges imposed or
levied in Australia or overseas in connection with this Deed; and
b.
all such taxes, duties and government charges shall be paid by the Recipient.
3.7
Goods and Services Tax
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3.7.1
In this Deed, “tax invoice” and “GST” have the meanings given in the GST Act.
3.7.2
Unless indicated otherwise, the Purchase Price is exclusive of GST and the GST amount, if
applicable, must be paid by the Recipient in addition to the Purchase Price at the same time and in
the same manner as the consideration, or relevant part of it, is provided.
3.7.3
To the extent that there is any non-monetary consideration provided for the supply of the Assets (in
addition to, or in place of, money) the Commonwealth will be entitled to recover from the Recipient
any additional GST payable as a result.
3.7.4
The Commonwealth shall issue any tax invoice which is required to be issued to the Recipient
under this Deed in accordance with the GST Act.  The tax invoice shall state the amount of GST
payable by the Recipient.
3.7.5
Any amount of GST to be paid by the Recipient under this clause 3.7 shall be a debt recoverable
by the Commonwealth in accordance with clause 3.29.
3.7.6
If a party has a claim for an amount under this Deed, the claim is for the amount less any input tax
credit to which that party is entitled in respect of the claim. The Commonwealth may treat the
Recipient as entitled to full input tax credits for GST included in an amount unless the Recipient
satisfies the Commonwealth otherwise.
3.8
Condition of Assets
3.8.1
The Recipient accepts the Assets on an As Is, Where Is basis in the condition and state of repair
that the Assets are in at the Collection Date.
3.8.2
The Assets may contain (in or on the Assets) risks and hazards. On and from the Collection Date,
the Recipient assumes all risk and responsibility for identifying and locating any risks and hazards
in or on the Assets or arising from the Use of the Assets and ensuring that no damage, loss or
injury is sustained by any person (including to workers, as defined in the WHS Legislation and
other persons) by or arising from the presence of risks and hazards in or on the Assets, including
when workers perform activities associated with the Use of the Assets.
3.8.3
Without limiting any other provision of this Deed, the Commonwealth shall provide to the Recipient
written notice of any known risks and hazards present in or on the Assets on or before the
Collection Date, to the extent necessary to comply with the applicable WHS Legislation (including
any information in this Deed). No representation, warranty or guarantee is provided by the
Commonwealth that the information in the notice is accurate or complete or identifies all risks and
hazards in or on the Assets.
3.8.4
The Recipient acknowledges and agrees that it has made, or will make, its own independent
inquiries, inspections and assessments of, and has satisfied itself in relation to, the risks and
hazards that may be in or on the Assets prior to performing any activities associated with the
Assets or their Use.
3.8.5
If, at the Collection Date, all or any part of the Assets are unfit for the purposes for which they were
purchased by the Commonwealth, the Recipient shall not, at any time, restore, or attempt to
restore, the Assets so that they are wholly or partly operable for that purpose unless that purpose is
a Permitted Use.
3.8.6
The Recipient shall not reject the Assets, or make any claim for compensation or damages, on the
grounds that the Assets are defective or vary from the description in this Deed or any information
provided by the Commonwealth to the Recipient as part of the RFS process or otherwise published
by the Commonwealth, or any other person, regarding the Assets.
3.9
Collection and Delivery
3.9.1
The parties shall comply with the requirements for delivery and collection of the Assets set out in
Item 9 of Attachment A.
3.9.2
Without limiting clause 3.9.4, the Recipient shall comply with the Collection and Transportation
Plan.
3.9.3
Subject to clause 3.9.6, the Recipient shall collect, or arrange for the collection of, the Assets from
the Defence Location on the Collection Due Date, or as otherwise agreed by the parties in writing.
3.9.4
The Recipient shall comply with, and require its employees, officers, contractors and agents to
comply with, any relevant Commonwealth safety and security requirements, regulations, standing
orders and codes of behaviour for the Defence Location.
3.9.5
The Recipient shall not take possession of the Assets prior to the Collection Due Date.
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3.9.6
Unless otherwise agreed in writing between the Commonwealth and the Recipient, the Recipient
shall not take possession of the Assets until the Purchase Price is received in full by the
Commonwealth in cleared funds in accordance with this Deed. However, if the Commonwealth has
agreed to release particular Assets on payment of an instalment of the Purchase Price, then the
Recipient shall not take possession of those particular Assets until the relevant instalment of the
Purchase Price is received in full by the Commonwealth in cleared funds in accordance with this
Deed.
3.9.7
The Recipient shall ensure that it has paid the Purchase Price or relevant instalment of the
Purchase Price no less than 48 hours prior to the Collection Due Date so as to enable the
Commonwealth to have received cleared funds prior to the Collection Due Date. The
Commonwealth shall not be responsible for any Loss incurred by the Recipient as a consequence
of any refusal by the Commonwealth to release the Assets for collection because the
Commonwealth has not received the full Purchase Price or instalment of the Purchase Price in
cleared funds.
3.9.8
The Recipient shall reimburse the Commonwealth for the cost of rectification of any damage to the
Defence Location or Commonwealth equipment or assets caused by the Recipient or anyone
acting on behalf of the Recipient during the Recipient’s collection of the Assets.
3.9.9
If the Recipient fails to collect the Assets within 20 Working Days after the Collection Due Date, the
Commonwealth may immediately terminate this Deed for default under clause 3.26 by giving notice
in writing to the Recipient.
3.9.10
The Recipient acknowledges and agrees that:
a.
the condition of the Assets may affect the costs incurred by the Recipient in collecting the
Assets or how the collection may occur; and
b.
the Commonwealth will not be liable for any costs incurred by the Recipient in connection
with collecting or arranging collection of the Assets from the Defence Location, even if
additional costs are incurred by the Recipient as a result of the condition of the Assets.
3.10
Government Furnished Equipment
3.10.1
Subject to clauses 3.10.3 and 3.10.4, the Commonwealth may make available on loan at no cost to
the Recipient such items of Government Furnished Equipment (GFE) as are agreed by the
Commonwealth and the Recipient at the time and for the period agreed by the Commonwealth and
the Recipient.
3.10.2
If the Commonwealth has agreed, at the Effective Date, to provide GFE, details of that GFE may
be set out in the Special Conditions.  However, this clause 3.10 applies to any GFE, regardless of
whether or not the GFE is listed in this Deed.
3.10.3
The Recipient acknowledges that the Commonwealth and other entities may require access to the
GFE. The Commonwealth makes no guarantee, and the Recipient should not assume, that all or
any of the items of GFE which the Recipient wishes to use will be available at the time the
Recipient wishes to use them.
3.10.4
The Commonwealth is under no obligation to provide the GFE.  The Recipient will not be excused
from performing its obligations under this Deed by reason of the Commonwealth not providing any
item of GFE at the time or for the period the Recipient wishes to use it.
3.10.5
The Recipient must use the GFE only for the purposes for which it was provided by the
Commonwealth and only in relation to the Assets.
3.10.6
The Recipient must not remove the GFE or allow the GFE to be removed from the Defence
Location unless with the prior, written consent of the Commonwealth.
3.10.7
The Recipient must, at all times operate the GFE in accordance with:
a.
any guidelines, regulations or requirements issued by the Commonwealth;
b.
all work, health and safety or other regulations which are applicable to the GFE or its
operation; and
c.
the specifications or requirements of the manufacturer of the GFE as provided with the
GFE or of which the Recipient ought to be aware.
3.10.8
Without limiting clause 3.10.7, the Recipient must ensure that the GFE is, at all times kept in the
possession or control of the Recipient, and operated in a professional, proper and safe manner and
so as to avoid injury of damage to the GFE and any persons operating, using or handling the GFE.
3.10.9
The Recipient must:
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a.
store and use the GFE in a responsible, competent, proper and skillful manner and comply
with all instructions given by the Commonwealth regarding the manner in which this should
be done;
b.
take all reasonable steps to ensure the proper protection and security of the GFE; and
c.
not make any alteration, addition or modification to any of the GFE.
3.10.10  The Recipient acknowledges and agrees that it shall be solely liable and responsible for all costs
and expenses arising out of or in connection with the performance of all activities necessary to
comply with its obligations under this clause 3.10.
3.10.11  The Recipient must ensure that the GFE is not in any way lost, damaged or destroyed as a result
of its use by the Recipient.
3.10.12  The GFE must be returned to the Commonwealth at the Defence Location on the earlier of:
a.
the time for return agreed by the Commonwealth and the Recipient; or
b.
demand by the Commonwealth,

in the same condition (including its form and functionality) as when it was provided to the Recipient.
3.10.13  If, in the Commonwealth’s opinion, the GFE has been lost, damaged or destroyed by the Recipient,
the Commonwealth will notify the Recipient and may make whatever arrangements (including
entering into contracts with third party repairers or suppliers of the GFE) as the Commonwealth, in
its discretion, considers necessary to replace or restore the GFE to the same condition as it was in
when it was provided to the Recipient.
3.10.14  The Recipient will be solely responsible for all costs and expenses incurred by the Commonwealth
in replacing or restoring the GFE in accordance with clause 3.10.13. All such amounts may be
recovered by the Commonwealth as a debt owing to the Commonwealth from the Recipient.
3.10.15  If the Recipient fails to return any GFE, the Commonwealth may repossess the GFE and may enter
any Recipient premises for this purpose.
3.10.16  Nothing in this Deed is taken to vest title to the GFE in the Recipient.  For the avoidance of doubt,
the GFE does not form part of the Assets.
3.10.17  The provision of the GFE by the Commonwealth does not convey any licence to use any trade
marks, patents or patentable inventions which are disclosed by, or comprised in, or included on,
the GFE.
3.11
Title and Risk
3.11.1
Title to the Assets will pass to the Recipient on the Collection Date, unless agreed otherwise by the
parties in writing.  The Commonwealth may require the Recipient to sign a receipt for the Assets
upon collection.
3.11.2
Whether or not the Assets are collected on the Collection Due Date, the Recipient is solely
responsible for all costs and risks associated with the Assets on and from the Collection Due Date.
3.11.3
The Commonwealth’s release of the Assets, or facilitation of their collection by the Recipient, does
not limit or reduce the Recipient’s obligations under this Deed, nor does it amount to an agreement
that the Recipient is complying, or has complied, with any law.
3.11.4
Transport of the Assets and possession of the Assets after collection are at the Recipient’s sole
risk.
3.12
Further Transfer or Disposal
3.12.1
If the Recipient wishes to transfer or dispose of the Assets, the Recipient shall ensure that it
complies with this Deed (including clause 3.17) and all applicable laws.
3.12.2
The Recipient shall not:
a.
sell, transfer, lease or otherwise dispose of the Assets;
b.
transfer possession of the Assets; or
c.
create or allow a PPS Security Interest (other than an interest granted in favour of the
Commonwealth) to subsist in the Assets,
except as expressly permitted by this Deed or with the prior, written consent of the
Commonwealth, such consent not to be unreasonably withheld, and if the Assets are FMS
acquired, or ITAR or EAR controlled, also with the prior, written consent of the United States
Government.
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3.12.3
The Commonwealth may, as a condition of any consent granted under clause 3.12.2 to a sale,
transfer, lease or other disposal, require that the relevant recipient, purchaser, transferee or lessee
enter into a deed with the Commonwealth in relation to the condition and use of the Assets and to
ensure that the Commonwealth has rights to retake possession of the Assets on termination of that
deed.
3.12.4
The Recipient shall not, directly or indirectly, transfer or provide the Assets, or allow the Assets to
be transferred or provided, to an individual or entity on the Consolidated List to which the Charter of
the United Nations Act 1945 and the Autonomous Sanctions Act 2011 currently applies, as
published by the Australian Government Department of Foreign Affairs and Trade.
3.12.5
If the Recipient fails to fully comply with this clause 3.12, the Commonwealth may immediately
terminate this Deed for default under clause 3.26 by giving notice in writing to the Recipient.
3.13
Costs
3.13.1
Each party will bear its own costs of negotiating, entering and performing this Deed.
3.14
Audit
3.14.1
The Recipient shall grant the Commonwealth or its nominees access to the Recipient’s premises,
records and accounts relevant to this Deed, including to conduct audits under the Auditor-General
Act 1997 (Cth). The Commonwealth and its nominees may make copies of documents for the
purposes of this clause 3.14.1.
3.14.2
Nothing in this clause 3.14 shall limit or affect the rights of the Auditor-General or the Australian
Information Commissioner under law.
3.15
Intellectual Property
3.15.1
The Recipient acknowledges that a third party or third parties may own Intellectual Property rights
comprised in the Assets, and that it may constitute an infringement of those rights to undertake
certain activities, or authorise the undertaking of certain activities, in relation to the Assets.
3.15.2
If the Commonwealth has granted any Intellectual Property rights to the Recipient in relation to the
Assets, those Intellectual Property rights are expressly set out in this Deed. No other Intellectual
Property rights are granted to the Recipient in relation to the Assets, and all such rights are
expressly excluded, including any licences which may otherwise have been implied.
3.15.3
Unless this Deed expressly provides otherwise, the Recipient is responsible for obtaining any
Intellectual Property rights required in relation to the Assets or their Use.
3.15.4
To avoid doubt, the Commonwealth has not authorised the Recipient to undertake any activities in
relation to the Assets which may infringe the Intellectual Property rights of any third party.
3.16
Licenses and Permits
3.16.1
If Item 10 of Attachment A requires the Recipient to hold specific licenses or permits, the Recipient
shall obtain such licenses and permits prior to the Collection Date and maintain them as required
by law.  The Recipient acknowledges that the list in Item 10 of Attachment A may not be exhaustive
of the licences, permits or other approvals or authorisations required.
3.16.2
The Recipient shall provide evidence of any licences and permits referred to in clause 3.16.1 to the
Commonwealth upon request.
3.16.3
Even if no licences or permits are listed in Item 10 of Attachment A, the Recipient acknowledges
that this does not indicate that no licences, permits or other approvals or authorisations are
required.  The Recipient is responsible for identifying all licences, permits, approvals and
authorisations required in relation to the Assets and their Use or the carrying out of activities
referred to in clause 3.2, and for obtaining and maintaining them at its own cost, whether or not
they are listed in Item 10 of Attachment A.
3.17
Export Controls
3.17.1
If the Commonwealth has obtained Transfer Authorisation in relation to the transfer of the Assets
which it has agreed to provide to the Recipient, these are set out in Attachment C. If Transfer
Authorisations are obtained after the Effective Date, the Commonwealth shall promptly provide a
copy of the Transfer Authorisations to the Recipient.
3.17.2
The Recipient shall comply with all Transfer Authorisations relating to the Assets.
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3.17.3
The Recipient shall not act, or allow any third party to act, in a manner which may result in the
Commonwealth contravening any applicable export controls laws (domestic or foreign) or any
condition or requirement of any Transfer Authorisation given in relation to the Assets.
3.17.4
If the Recipient breaches this clause 3.17, the Commonwealth may immediately terminate this
Deed for default under clause 3.26 by giving notice in writing to the Recipient.
3.17.5
For the avoidance of doubt, no Assets will be transferred under this Deed unless Transfer
Authorisation has been obtained for those Assets. This clause 3.17.5 takes priority over any
inconsistent provision of this Deed.
3.18
Problematic Substances and Problematic Sources
3.18.1
The Recipient acknowledges that the Assets may contain Problematic Substances or Problematic
Sources.
3.18.2
The Commonwealth has provided to the Recipient (or shall provide prior to the Collection Date) the
Problematic Substance and Problematic Sources Register for the Assets as set out in, or in the
form of, Attachment B, if any Problematic Substances or Problematic Sources are known to be
present on or in the Assets.  No representation, warranty or guarantee is provided by the
Commonwealth that the Problematic Substance and Problematic Sources Register is accurate or
complete or identifies all Problematic Substances or Problematic Sources on or in the Assets.
3.18.3
The Recipient acknowledges and agrees that it has made or will make its own independent
inquiries, inspections and assessments of, and has satisfied itself in relation to, the Problematic
Substances and Problematic Sources that may be on or in the Assets prior to performing activities
associated with the Use of the Assets.
3.18.4
On and from the Collection Due Date, to the extent permitted by law, the Recipient assumes all
risk, liability and responsibility for:
a.
verifying and locating any Problematic Substances or Problematic Sources on or in the
Assets;
b.
the presence of any Problematic Substances or Problematic Sources that may be on or in
the Assets and anything incidental to them, including compliance with all applicable laws,
including the WHS Legislation, and the requirements of any government agency; and
c.
ensuring no damage, Loss or injury is sustained (including to workers, other persons or the
environment) by or as a result of Problematic Substances or Problematic Sources that may
be on or in the Assets.
3.18.5
The Recipient shall not breach areas or disturb any component of the Assets which may contain
Problematic Substances or Problematic Sources unless such disturbance or breach is reasonably
necessary to safely undertake the Permitted Use and such disturbance or breach is carried out by
a person who is licensed, authorised and qualified to carry out such activities, including in
accordance with clause 3.19.5.
3.19
Work Health and Safety (WHS)
3.19.1
The Recipient shall comply with all reasonable directions and Commonwealth procedures relating
to work health and safety and security in effect or as notified by the Commonwealth Representative
to the Recipient from time to time, so far as these directions concern the safe collection of the
Assets.
3.19.2
The Recipient:
a.
shall comply with, and shall ensure that all its contractors comply with, the applicable WHS
Legislation including the obligation under the WHS Legislation to, so far as is reasonably
practicable, consult, co-operate and co-ordinate activities with the Commonwealth or
contractors and any other person who, concurrently with the Commonwealth, Recipient or
the contractor, has a work health and safety duty under the WHS Legislation in relation to
the same matter; and
b.
acknowledges, in carrying out any obligations under this Deed, that it has a duty to ensure,
so far as is reasonably practicable, the health and safety of:
(i)
Commonwealth personnel;
(ii)
Recipient personnel; and
(iii)
other persons,
in connection with the Use of the Assets.
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3.19.3
The Recipient represents and warrants that:
a.
it has given careful, prudent and comprehensive consideration to the work health and
safety implications of taking possession of the Assets;
b.
its proposed method of Use of the Assets complies with, and includes a system for
identifying and managing work health and safety risks which complies with all applicable
legislation relating to work health and safety including the applicable WHS Legislation; and
c.
it will apply (and review, amend and apply, as appropriate) the work health and safety risk
management plans and processes it prepared and submitted to the Commonwealth in
relation to the Assets.
3.19.4
To  the  extent  not  inconsistent  with  the  express  requirements  of  this  Deed,  the  Commonwealth
Representative may direct the Recipient to provide particular information or documentation that the
Commonwealth  considers  reasonably  necessary  to  enable  it  to  comply  with  applicable  legislation
relating to work health and safety, including the WHS Legislation.
3.19.5
The Recipient shall ensure that if the WHS Legislation requires that:
a.
a person (including a contractor):
(i)
be  authorised or licensed  in accordance  with the WHS Legislation to carry  out any
works  at  a  workplace,  that  that  person  is  so  authorised  or  licensed  and  complies
with any conditions of such Authorisation; or
(ii)
has prescribed qualifications or experience, or if not, is to be supervised by a person
who has prescribed qualifications or experience (as defined in the WHS Legislation),
that that person has the required qualifications or experience or is so supervised; or
b.
a workplace, plant, substance or design, or work (or class of work) be authorised or
licensed, that that workplace, plant, substance or design, or work (or class of work) is so
authorised or licensed.
3.19.6
To  the  extent  the  WHS  Legislation  applies,  the  Recipient  shall  report  to  the  Commonwealth  any
Notifiable  Incident  in  connection  with  the  Assets,  their  Use  or  the  performance  of  this  Deed  that
involves:
a.
Recipient personnel or the Recipient’s contractor personnel on Commonwealth premises;
b.
Commonwealth personnel on the Recipient or the Recipient’s contractors’ premises; or
c.
any person (including Commonwealth, Recipient or Recipient’s contractor personnel),
where the incident arises out of the conduct of the Commonwealth’s business or
undertaking, and the Commonwealth owes such person a duty under the WHS Legislation.
3.19.7
Where practicable, the Recipient shall report Notifiable Incidents in accordance with Department of
Defence Form AE527, as amended from time to time.
3.19.8
The Recipient shall  promptly  provide copies  of notices or any other  documentation provided to or
issued by the regulator and provide such other information and reasonable assistance as may be
required  to  ensure  the  Commonwealth  complies  with  its  reporting  obligations  to  Comcare,  if  any,
regarding the Notifiable Incident.
3.20
Exclusion of Warranties and Guarantees
3.20.1
The Recipient acknowledges and agrees that the Commonwealth has not given or made, and does
not give or make, any warranties or guarantees of any kind in relation to the Assets or GFE or any
information or documentation provided with the Assets or GFE, and this Deed expressly excludes
all such warranties or guarantees, whether express or implied, to the maximum extent permitted by
law.  The Recipient accepts the transfer of the Assets, and takes possession and makes use of the
Assets and GFE, entirely at its own risk.
3.20.2
Without limiting clause 3.20.1, to the extent permitted by law, the Commonwealth does not warrant,
guarantee or represent that:
a.
the Assets are capable of being registered or certified, safe, compliant with any laws,
complete, of merchantable quality or fit for any purpose (including the Permitted Use); or
b.
the GFE is safe, compliant with any laws, complete or fit for any purpose.
3.20.3
To the extent permitted by law, the Commonwealth will not be liable for any Loss, including any
special, indirect or consequential damages (including loss of profits or anticipated profits, or loss of
revenue) arising from the transfer of the Assets to the Recipient or the possession or Use of the
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Assets or GFE by or on behalf of the Recipient, however caused, whether in tort (including
negligence), contract, statute, equity or otherwise.
3.20.4
The Recipient hereby irrevocably releases and discharges the Commonwealth from any liability in
relation to the Assets and GFE, including Problematic Substances or Problematic Sources that
may be on or in the Assets or GFE, from the Collection Due Date.
3.21
Insurance
3.21.1
The Recipient shall ensure that it effects and maintains insurance arrangements that are
appropriate, given the nature and risks associated with the Assets and the Permitted Use.
3.21.2
If required by the Commonwealth, the Recipient shall promptly provide evidence of the insurance
arrangements referred to in clause 3.21.1 to the Commonwealth’s satisfaction.
3.22
Indemnity
3.22.1
The Recipient shall indemnify and hold harmless the Commonwealth and the Commonwealth’s
officers, employees, contractors and agents (“those indemnified”) against any Loss suffered,
sustained or incurred by those indemnified arising out of or in connection with:
a.
the performance of this Deed by the Recipient, including the carrying out of activities
referred to in this Deed or any act or omission of the Recipient or its officers, employees,
contractors or agents;
b.
any Use of the Assets or GFE by or on behalf of the Recipient or any person who receives
an Asset or GFE from or through the Recipient or its successors in title; or
c.
the breach of any of the terms of this Deed by the Recipient,
except to the extent that such Loss results from any unlawful or negligent act or omission on the
part of those indemnified.  The Commonwealth will hold the rights of those indemnified (other than
the Commonwealth) on trust and may exercise the rights on behalf of those indemnified.
3.22.2
In addition to the indemnity in clause 3.22.1, the Recipient shall indemnify the Commonwealth for
any Loss suffered by the Commonwealth arising out of or in connection with a failure by the
Recipient to comply with its obligations under this Deed or any laws applicable to the Use of the
Assets or GFE.
3.23
Limitation of Liability
3.23.1
The liability of the Commonwealth under or in connection with this Deed (including any liability for
breach of this Deed, in tort (including negligence), under statute in equity or otherwise) is limited to
the minimum amount permitted by law.
3.24
Privacy
3.24.1
In this Deed, “Privacy Act” means the Privacy Act 1988 (Cth) and “Australian Privacy Principles”,
“Information Commissioner” and “personal information” have the meanings given in the Privacy
Act.
3.24.2
The Recipient shall:
a.
if it obtains personal information from the Commonwealth in the course of performing this
Deed, use or disclose that personal information only for the purposes of this Deed;
b.
comply with the Privacy Act; and
c.
in the course of performing this Deed, not do any act or engage in any practice which, if
done or engaged in by the Commonwealth, would be a breach of the Australian Privacy
Principles.
3.24.3
The Recipient shall notify the Commonwealth as soon as reasonably practicable if:
a.
it becomes aware of a breach or possible breach of any of the obligations contained, or
referred to, in this clause 3.24, whether by the Recipient or any other person to whom the
personal information has been disclosed for the purposes of this Deed; or
b.
in relation to personal information obtained in the course of performing this Deed:
(i)
it becomes aware that a disclosure of such personal information may be required by
law; or
(ii)
it is approached by the Information Commissioner.
3.24.4
The Recipient shall ensure that its contractors and personnel who deal with personal information
for the purposes of this Deed are aware of, and comply with, this clause 3.24.
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3.24.5
Without limiting this clause 3.24, prior to the Recipient disclosing the contents of this Deed to
current or prospective investors, customers, purchasers or other persons, the Recipient must first
remove or obscure the Commonwealth Representative’s details in Attachment A, to the extent
these details include personal information.
3.25
Dispute Resolution
3.25.1
A party shall not commence court proceedings relating to any dispute in relation to this Deed
except after following the process in this clause 3.25.
3.25.2
The parties shall negotiate in good faith and use all reasonable efforts to resolve disputes in
relation to this Deed as quickly as practicable.
3.25.3
If a dispute in relation to this Deed cannot be settled by negotiation within 30 days, the parties shall
escalate the dispute to their senior management.
3.25.4
The parties shall at all times during the dispute continue to fulfil their obligations under this Deed.
3.25.5
Nothing in this clause prevents any party from exercising a right to terminate this Deed or reduce
the scope of this Deed, or from seeking urgent interlocutory relief in relation to a dispute.
3.26
Termination for Default
3.26.1
In addition to its other rights under this Deed or at law, the Commonwealth may immediately
terminate this Deed (in whole or in part) by notice in writing to the Recipient, if the Recipient:
a.
fails to pay the Commonwealth the Purchase Price, or if the Purchase Price is stated to be
payable in instalments, fails to pay the Commonwealth any instalment of the Purchase
Price, by the Payment Due Date in accordance with clause 3.6;
b.
suffers an Insolvency Event; or
c.
commits a breach of this Deed which cannot be remedied or commits a breach of this
Deed for which this Deed provides a notice of termination for default may be given; or
d.
commits any breach of this Deed and fails to remedy that breach within a reasonable time
after receiving notice from the Commonwealth requiring the Recipient to remedy that
breach.
3.26.2
If this Deed is terminated under this clause 3.26.1, then the Commonwealth may, subject to any
provision of this Deed to the contrary and subject to obtaining any necessary Transfer
Authorisations, do one or more of the following:
a.
refuse to allow collection of the Assets, or any of them, by the Recipient;
b.
sell, transfer or otherwise dispose of the Assets, including to a third party, or destroy the
Assets;
c.
recover from the Recipient all Loss incurred by the Commonwealth as a result of a breach
of this Deed by the Recipient;
d.
if the Commonwealth sells, transfers or disposes of the Assets to a third party for less than
the Purchase Price, recover from the Recipient an amount equal to the difference between
the Purchase Price and any sale proceeds received by the Commonwealth;
e.
retake possession of the Assets or require the Recipient to deliver the Assets (at no charge
to the Commonwealth) to the Commonwealth at a location, time and date notified by the
Commonwealth; and
f.
retain any amount paid to the Commonwealth by the Recipient and use that amount to
offset any Loss incurred by the Commonwealth or other amount due to the Commonwealth
from the Recipient under this Deed or otherwise.
3.26.3
Title to the Assets will pass to the Commonwealth if the Commonwealth retakes possession of the
Assets or the Assets are delivered to the Commonwealth under this clause 3.26.
3.26.4
The Recipient shall pay to the Commonwealth any amount notified as owing under clause 3.26.2
within 30 days of the date of the notice and receipt of a correctly rendered invoice.
3.26.5
The Commonwealth shall not be liable to the Recipient for any Loss suffered by the Recipient or
any refund of the Purchase Price as a result of a termination under this clause 3.26.
3.27
Termination for Convenience
3.27.1
In addition to any other rights it has under this Deed or otherwise at law, the Commonwealth may
at any time terminate this Deed (in whole or in part) by notifying the Recipient in writing.
3.27.2
If this Deed is terminated under this clause 3.27, then the Commonwealth may, subject to any
provision of this Deed to the contrary and subject to any necessary Transfer Authorisations, do one
or more of the following:
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a.
refuse to allow collection of the Assets by the Recipient;
b.
sell, transfer or otherwise dispose of the Assets; and
c.
retake possession of the Assets or require the Recipient to deliver the Assets to the
Commonwealth at a location, time and date notified by the Commonwealth.
3.27.3
If the Commonwealth Representative issues a notice under clause 3.27.1, the Recipient’s sole
remedy against the Commonwealth shall be:
a.
a refund of payments made by the Recipient under this Deed for any part of the Assets not
supplied to, or collected by, the Recipient or which are returned to the Commonwealth in
accordance with clause 3.27.2; and
b.
the payment of reasonable costs which are:
(i)
directly incurred by the Recipient as a result of the termination of this Deed including
costs directly incurred by the Recipient in delivering any Assets to the Commonwealth
as required by clause 3.27.2); and
(ii)
which were unable to be mitigated by the Recipient, as substantiated to the
reasonable satisfaction of the Commonwealth.
3.27.4
Without limiting clause 3.27.3, the Commonwealth shall not be liable for any Loss (including loss of
profits, loss of revenue or loss of business opportunity) as a result of the termination of this Deed
under this clause 3.27, other than as specified in clause 3.27.3.
3.27.5
The refund or payment described in clause 3.27.3 shall be made by the Commonwealth by
electronic funds transfer within 60 days of Commonwealth receipt of the Recipient’s account details
and a correctly-rendered tax invoice.
3.28
Notices
3.28.1
Unless the contrary intention appears, any notice or communication under this Deed shall be
effective if it is in writing and sent from and delivered to the Commonwealth Representative or
Recipient Representative, in accordance with the details specified in Items 3 or 4 of Attachment A.
3.28.2
A notice or communication shall be deemed to have been delivered:
a.
if sent by pre-paid post, in three Working Days when sent within Australia and in eight
Working Days when sent by air mail from one country to another;
b.
if hand delivered, when received at the address, or by the addressee if sooner;
c.
if sent by facsimile, when the sender's facsimile system generates a message confirming
successful transmission of the total number of pages of the notice, unless within one
Working Day after that transmission, the addressee informs the sender that it has not
received the entire notice; or
d.
if sent as an email, when the email enters the addressee’s information system, unless the
sender’s information system receives a message within one Working Day that the email
has not been delivered to the addressee,
but, if the receipt, transmission or entry into the information system is not on a Working Day or is
after 5.00pm (addressee's local time) on a Working Day, the notice is taken to be received at 9.00am
(addressee’s local time) on the next Working Day.
3.29
Right of Commonwealth to Recover Debts
3.29.1
Without limiting the Commonwealth’s rights under this Deed, if the Recipient owes any debt to the
Commonwealth in relation to this Deed, the Commonwealth may exercise one or both of the
following:
a.
deduct the amount of the debt from payment of any amount otherwise due to the Recipient
under this Deed or any contract or otherwise at law; or
b.
give the Recipient written notice of the existence of a debt recoverable which shall be paid
by the Recipient within 30 days after receipt by the Recipient of notice and a correctly-
rendered tax invoice.
3.29.2
If the Commonwealth deducts the amount of a debt from any payment, it shall notify the Recipient
in writing that it has done so.
3.29.3
If any sum of money owed to the Commonwealth is not received by its due date for payment, the
Recipient shall pay to the Commonwealth interest at the Australian Tax Office sourced General
Interest Charge rate current at the date the payment was due, for each day the payment is late.
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3.29.4
Nothing in this clause 3.29 shall affect the right of the Commonwealth to recover from the Recipient
the whole of any debt owed by the Recipient, or any balance that remains owing after deduction.
3.30
General
3.30.1
Either party may propose a variation to this Deed. This Deed shall only be varied in writing and
when signed by both parties.
3.30.2
If any of clauses 1 to 3.31 of this Deed are inconsistent with any provision in an Attachment or
Schedule to this Deed, then clauses 1 to 3.31 of this Deed take precedence to the extent of the
inconsistency.
3.30.3
If any part of this Deed is or becomes illegal, invalid or unenforceable, the legality, validity or
enforceability of the remainder of this Deed shall not be affected and shall be read as if that part
had been severed.
3.30.4
The laws of the Jurisdiction shall apply to this Deed. The courts of the Jurisdiction shall have non-
exclusive jurisdiction to decide any matter arising out of this Deed and each party submits to the
jurisdiction of those courts for any proceedings in connection with this Deed.
3.30.5
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to
this Deed.
3.30.6
The Recipient shall not represent itself, and shall ensure that its personnel do not represent
themselves, as being employees, partners or agents of the Commonwealth.
3.30.7
The Recipient may not, without the prior, written consent of the Commonwealth, and if the Assets
are FMS acquired, or ITAR or EAR controlled, without the prior, written consent of the United
States Government, assign in whole or in part, its rights under this Deed or novate this Deed.
3.30.8
Failure by either party to enforce a term of this Deed shall not be construed as in any way affecting
the enforceability of that term or this Deed as a whole.
3.30.9
A clause of this Deed shall not be interpreted against a party merely because that party was
responsible for drafting the clause.
3.30.10  Each party shall do all things, including execute all documents, necessary to give effect to this
Deed.
3.30.11  If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the
Commonwealth, the Commonwealth is unable to perform in whole or in part any obligation under
this Deed, the Commonwealth is relieved of that obligation to the extent and for the period that it is
unable to perform that obligation. No liability of the Commonwealth arises from any such delay or
non-performance of the obligation.
3.30.12  This Deed represents the parties’ entire agreement in relation to its subject matter and supersedes
all prior representations, communications, agreements, statements and understandings, whether
oral or in writing.
3.30.13  This Deed may be executed in counterparts and all executed counterparts, taken together,
constitute one document.
3.30.14  Any time or date specified in this Deed is for the benefit of the Commonwealth. The
Commonwealth shall endeavor to meet such times and dates, but shall not be liable for any Loss
caused by a failure by the Commonwealth to meet any particular time or date specified in this
Deed.
3.30.15  The Recipient:
a.
shall take all reasonable measures to prevent, detect and investigate any fraud that may
occur, is occurring or has occurred under this Deed; and,
b.
acknowledges and agrees that its obligation in clause 3.30.15a extends to taking all
reasonable measures to prevent, detect and investigate any fraud which has or may be
committed by its personnel or contractors in relation to this Deed.
3.30.16  If the Recipient knows that any fraud described in clause 3.30.15 is occurring or has occurred, it
shall, as soon as practicable, provide written details to the Commonwealth, and provide such
further information and assistance as the Commonwealth, or any person authorised by the
Commonwealth, reasonably requires in relation to the fraud.
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3.31
Survival
3.31.1
The following clauses survive the expiry or termination of this Deed:
a.
clause 3.2 (Use of the Assets);
b.
clause 3.3 (Specific Requirements);
c.
clause 3.4 (Special Conditions);
d.
clause 3.12 (Further Transfer or Disposal);
e.
clause 3.14 (Audit);
f.
clause 3.15 (Intellectual Property);
g.
clause 3.17 (Export Controls);
h.
clause 3.20 (Exclusion of Warranties and Guarantees);
i.
clause 3.22 (Indemnity);
j.
clause 3.23 (Limitation of Liability);
k.
clause 3.24 (Privacy); and
l.
any other provision which expressly or by implication from its nature is intended to survive
the termination or expiration of this Deed, and any rights arising on termination or
expiration, including provisions relating to exclusion of warranties, indemnities, costs, GST,
ITAR and export controls, dispute resolution and termination.
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EXECUTED AS A DEED

SIGNED, SEALED AND DELIVERED for and on behalf of

THE COMMONWEALTH OF AUSTRALIA REPRESENTED BY THE DEPARTMENT OF DEFENCE

(signature)

(print name and position)

(date)

In the presence of:

(signature of witness)

(print name of witness)

(date)

SIGNED, SEALED AND DELIVERED for and on behalf of

[…INSERT RECIPIENT NAME…]

in accordance with s.127 of the Corporations Act 2001 (Cth):



(signature)

(print name)

Director/Sole Director

(date)

(signature)

(print name)
Director/secretary

(date)

SIGNED, SEALED AND DELIVERED for and on behalf of

[…INSERT RECIPIENT NAME…]

(signature)

(print name and position)

(date)

In the presence of:

(signature of witness)

(print name of witness)

(date)

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ATTACHMENT A - PARTICULARS OF TRANSFER

1.
DESCRIPTION OF ASSETS (CLAUSE 1.1)
1.1
[SEPARATE LIST OF ASSETS, INCLUDING TAIL NUMBERS OF AIRCRAFT AS KNOWN, TO BE
INCLUDED AS A SEPARATE ANNEX A]. The Assets comprise:
a.
the S-70A-9 Black Hawk Aircraft as described in Annex A (Aircraft);
b.
such data relating to the Aircraft as the Commonwealth provides from time to time; and
c.
associated Commonwealth-owned unique  Inventory  Items, as the Commonwealth identifies
as available and surplus from time to time and which the Commonwealth elects to include as
part of the Assets by notice to the Recipient.
1.2
The  Assets  will  be  provided  to  the  Recipient  in  tranches  as  specified  in  Annex  A  (Tranches),
subject to Item 11.5.
2.
DEFENCE LOCATION (CLAUSE 1.1)
2.1
Meeandah,  Brisbane  QLD,  Australia,  or  such  other  location  for  particular  Assets  or  Tranches
notified by the Commonwealth in writing from time to time.
3.
COMMONWEALTH REPRESENTATIVE (CLAUSE 1.1 AND 3.28)
3.1
[NAME]
[ORGANISATION]
[ADDRESS]
[EMAIL ADDRESS]
4.
RECIPIENT REPRESENTATIVE (CLAUSE 1.1 AND 3.28)
4.1
[NAME]
[ORGANISATION]
[ADDRESS]
[EMAIL ADDRESS]
5.
JURISDICTION (CLAUSE 1.1 AND 3.30.4)
5.1
Australian Capital Territory, Australia.
6.
COLLECTION DUE DATE (CLAUSE 1.1)
6.1
The  Commonwealth  shall  notify  the  Recipient  in  writing  of  the  Collection  Due  Date  for  particular
Assets.
7.
PURCHASE PRICE AND PAYMENT (CLAUSE 1.1 AND 3.6)
The  price  for  each  S-70A-9  Black  Hawk  Aircraft  is  fixed  at  [….PRICE  OF  ASSET…]  exclusive  of
GST. The price of the Inventory is fixed at [….INSERT PRICE OF ASSET…] exclusive of GST.
7.1
The Recipient shall pay the Purchase Price in instalments as set out in Annex A within 30 days of
receipt of a tax invoice issued by the Commonwealth (each, a “Payment Due Date”).
7.2
The Recipient shall pay each instalment of the Purchase Price using one of the payment methods
set out in the tax invoice.
7.3
For the avoidance of doubt, the Purchase Price is unalterable and remains due and payable in full
even if the Assets are in a different condition to that anticipated or even if the Recipient rejects, or
is deemed to reject, any particular Aircraft or Inventory Items. However, if the Commonwealth does
not make an Aircraft or Tranche available, the cost of that Aircraft or Tranche will be removed from
the Purchase Price and Annex A will be updated accordingly by the Commonwealth.
8.
PERMITTED USE (CLAUSE 3.2)
8.1
[DETAILS OF AGREED PERMITTED USE TO BE INSERTED]
9.
COLLECTION REQUIREMENTS (CLAUSE 3.9)
9.1
The  Recipient  shall  provide  a  Collection  and  Transportation  Plan  to  the  Commonwealth  no  later
than  10  Working  Days  prior  to  the  Collection  Due  Date  and  shall  update  the  Collection  and
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Transportation  Plan  as  required  by  the  Commonwealth  from  time  to  time  10  Working  Days  in
advance of any proposed Collection Due Date.
9.2
The Collection and Transportation Plan shal  include the Recipient’s risk assessment for collection
of  the  Assets,  transporting  the  Assets  from  the  Defence  Location  and  undertaking  the  Permitted
Use in respect of the Assets.
9.3
The Recipient is required to collect the Assets from the Defence Location and transport the Assets
from  the  Defence  Location  in  accordance  with  the  Collection  and  Transportation  Plan,  unless
agreed otherwise in writing.
9.4
The Commonwealth is under no obligation to provide assistance to the Recipient in respect of the
collection or transportation of the Assets.
10.
LICENCES AND PERMITS (CLAUSE 3.16)
a.
All civil aviation or other regulatory authority permits and licences that are required by law for
the  collection  and  transportation  of  the  Assets  or  for  the  Recipient’s  personnel  to  fly  the
Assets.
b.
All permissions required to access, and collect Assets from, the Defence Location.
11.
SPECIAL CONDITIONS (CLAUSE 3.4)
Security and Sanitisation
11.1
The Recipient acknowledges that the Commonwealth will be required to conduct sanitisation of the
Assets to remove any data, equipment or systems which may, in the Commonwealth’s opinion:
a.
present a security risk to the Commonwealth if they were retained on the Assets; or
b.
result in the unauthorised disclosure of confidential information.
11.2
The  Recipient  acknowledges  that  the  sanitisation  process  may  adversely  affect  the  value,
appearance and functionality of the Assets.
11.3
Notwithstanding  any  other  provision  of  this  Deed,  the  Commonwealth  shall  not  be  obliged  to
include any item as part of the Assets if, in the Commonwealth’s opinion:
a.
the sanitisation process has been unsuccessful; or
b.
including an item as part of the Assets may present a security risk to the Commonwealth.
11.4
If the Commonwealth elects to remove a Tranche from the Assets as described in Item 11.3, then
the  Commonwealth  shall  notify  the  Recipient  in  writing  and  this  Deed  (including  Annex  A)  will  be
updated  by  the  Commonwealth  to  remove  that  Tranche  from  the  Assets  and  remove  the
corresponding instalment of the Purchase Price.  All other provisions of the Deed will remain in full
force and effect.
Priority of Assets in Tranches
11.5
The  Recipient  may,  from  time  to  time,  request  the  Commonwealth  to  include  particular  Inventory
Items  in  any  Tranche  of  Inventory  Items,  except  that  the  total  value  of  Inventory  Items  in  a
particular Tranche which comprises only Inventory Items must be in approximate proportion to the
total value of Inventory Items in each other Tranche which comprises only Inventory Items.
11.6
The Commonwealth may, but is not obliged to, comply with a request made under Item 11.5.
11.7
Subject to clause 3.8.6 of the Deed, Tranches must be collected in the order set out in Annex A.
Further Transfer or Disposal (clause 3.12)
11.8
[Clause  to  be  inserted,  depending  on  agreed  ‘Permitted  Use’,  which  may  permit  resale  of  some
Inventory Items.]
11.9
The  Recipient  acknowledges  that  the  Commonwealth's  consent  to  a  sale,  transfer,  lease  or
disposal  of  Assets  to  a  third  party  under  clause  3.12.1  of  the  Deed  is  subject  to  the  third  party
entering into a deed with the Commonwealth in relation to the condition and use of the Assets and
to  provide  for  the  Commonwealth’s  rights  to  retake  possession  of  the  Assets,  or  any  of  them,  on
termination of that deed.
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Confidentiality
11.10
The  Recipient  acknowledges  that  the  Commonwealth  is  subject  to  government  reporting  and
disclosure  obligations  which  may  require  the  Commonwealth  to  disclose  (publicly  or  to
Commonwealth officers, Ministers, Parliament or Parliamentary Committees) certain content of this
Deed, including the name of the Recipient and the Purchase Price.
11.11
The Recipient must obtain the prior, written consent of the Commonwealth to the disclosure of any
content of this Deed or details of any transaction described in or contemplated by this Deed, other
than:
a.
content previously publicly disclosed by the Commonwealth;
b.
disclosures required by law or the rules of any stock exchange or similar body on which the
Recipient is listed; or
c.
disclosures by the Recipient for the purposes of the Recipient’s compliance with, or in order
to obtain, Authorisations required by this Deed.
Public Announcements
11.12
The  Recipient  shall  not  make  any  public  announcement  or  other  statement  which  refers  or  is
connected  to  either  this  Deed  or  the  Assets  without  the  prior,  written  consent  of  the
Commonwealth, except if such disclosure is required by any law or the rules of any stock exchange
or  similar  body  on  which  the  Recipient  is  listed.  This  clause  does  not  apply  to  routine  marketing
activities  promoting  the  Recipient’s  products  or  services  or  prevent  the  disclosure  of  information
that  is  public  knowledge  other  than  by  breach  of  this  clause,  a  breach  of  law  or  a  breach  of  any
obligation of confidentiality.
Photographs
11.13
The  Recipient  must  not,  and  must  ensure  that  its  personnel  and  contractors  do  not,  take  any
photographs whilst on Commonwealth premises or of Commonwealth-owned equipment or assets,
except with the prior, written consent of the Commonwealth.  For the avoidance of doubt, this Item
does  not  apply  to  the  Assets  once  title  in  those  Assets  has  transferred  to the  Recipient,  however
ITAR and EAR restrictions continue to apply.
Asset Disposal
11.14
[To be inserted – Recipient’s planned method of disposing of the Assets when they are no longer
required for Permitted Use – e.g. scrapping.]

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ANNEX A TO ATTACHMENT A- ASSETS AND PAYMENTS

[LIST OF ASSETS, TRANCHES AND PAYMENT AMOUNTS TO BE INSERTED BASED ON NEGOTIATED
OUTCOMES.]

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ATTACHMENT B - PROBLEMATIC SUBSTANCES AND PROBLEMATIC SOURCES REGISTER

1.
DESCRIPTION OF PROBLEMATIC SUBSTANCES
1.1
The known Problematic Substances contained in the Assets as at the Effective Date are as
detailed in the following documents:
a.
Problematic Substances and Problematic Sources Register
b.
Safety Data Sheets
c.
Special Technical Instructions

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ATTACHMENT C - EXPORT CONTROLS
1.
EXPORT CONTROLS
1.1
The following export controls are applicable to the Assets:
a.
[List of Configurations regarding  S-70A-9  Black Hawk ITAR and  EAR classified items to be
provided.]

2.
TRANSFER AUTHORISATIONS
2.1
The  following  Transfer  Authorisations  are  applicable  to  the  Assets  and  are  included  in  this
Attachment C:
a.
[Letter from US Department of State to be referenced and attached when obtained].
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ATTACHMENT D - SPECIFIC REQUIREMENTS

1.
SPECIFIC REQUIREMENTS
1.1
The following Schedules are included in this Attachment D:
a.
Schedule 1 – Security Interests
b.
Schedule 2 – Not used.

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ATTACHMENT D
SCHEDULE 1
SECURITY INTERESTS

PERSONAL PROPERTY SECURITIES REGISTRATION
1.
DEFINITIONS
1.1
For the purposes of this Schedule:
a.
“PPS  Register”  means  the  Personal  Property  Securities  Register  established  under  the
PPSA; and
b.
unless the context requires otherwise, terms have the meanings given to them in the PPSA.
2.
SECURITY PROVISION
2.1
The Recipient grants a first-ranking security interest in the Assets to secure the due and punctual
performance  of  the  Recipient’s  obligations  under  this  Deed  (the  “Secured  Obligations”).  This
security interest is a fixed charge.
2.2
Without  limiting  any  other  provision  of  this  Deed,  if  the  Recipient  breaches  any  of  the  Secured
Obligations, the Commonwealth may, in its absolute discretion and without limiting any other rights
it may have under this Deed or otherwise:
a.
enter  any  premises  occupied  by  the  Recipient  where  any  Asset  is  kept  and  repossess  the
Asset (including by detaching it from any item to which it may be attached, or by detaching it
from any land to which it may be fixed);
b.
exercise any of the rights of a secured party under the PPSA, including to seize, to retain or
to dispose of any Asset (or any part of it), except to the extent that the parties agree for the
purposes of clause 8 of this Schedule that a right does not apply; and
c.
appoint  any  person  or  any  two  or  more  persons  jointly  and  severally  to  be  a  receiver  or
receiver and manager of any Asset (and remove any such person).
2.3
If  the  Commonwealth  exercises  its  rights  under  clause  2.2a  or  2.2b  of  this  Schedule,  the
Commonwealth will not have any liability to the Recipient in relation to any Loss suffered as a result
of the repossession, seizure, retention or disposal of the Assets.
2.4
If  the  Commonwealth  exercises  its  rights  under  clause 2.2a  or  2.2b  of  this  Schedule,  title  to  the
Assets  will  pass  to  the  Commonwealth  on  repossession.    The  Commonwealth  is  not  required  to
dispose of the Assets within a specified period or at all.
2.5
The Recipient shall provide the Commonwealth with all reasonable assistance required to enable it
to exercise its rights under clause 2 of this Schedule.
2.6
This clause 2 survives the termination or expiry of this Deed.
3.
PPSA INFORMATION UNDERTAKINGS
3.1
The Recipient shall give the Commonwealth:
a.
(registration  information)  promptly  on  request  all  information  required  by  the
Commonwealth to ensure that any registration of any PPS Security Interest provided for by
this Deed is, and remains, fully effective or perfected (or both), and that each PPS Security
Interest has the priority required by the Commonwealth; and
b.
(change in name or other details):
(i)
at least 30 Working Days' prior notice of any change to its name, together with details
of the proposed new name; or
(ii)
at least 30 Working Days' notice before anything happens in respect of the Recipient
or any  Asset that would cause any  information in  a financing statement  in relation to
the Commonwealth's PPS Security Interest to be different if it were re-registered.
4.
NO POSTPONEMENT OF ATTACHMENT
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4.1
Nothing in this Deed may be taken as an agreement that any PPS Security Interest provided for by
this Deed attaches later than the time contemplated by section 19(2) of the PPSA.
5.
PPS SECURITY INTEREST CONTINUES DESPITE DEALING
5.1
If,  in  breach  of  this  Deed,  the  Recipient  attempts  to  dispose  of  or  otherwise  deal  with  any  of  the
Assets, the Recipient acknowledges that, despite the disposal or dealing:
a.
the  Commonwealth  has  not  authorised  the  disposal  or  agreed  that  the  dealing  would
extinguish the Commonwealth's security interest; and
b.
the Commonwealth's security interest continues in that Asset.
6.
LIABILITY FOR LOSS
6.1
Without limiting the Commonwealth’s other rights under this Deed or otherwise at law, to the extent
permitted by law, the Commonwealth will not be liable for any Loss that the Recipient suffers as a
direct  or  indirect  result  of  the  exercise  or  attempted  exercise  of,  or  failure  to  exercise,  any  of  its
rights contained in this Schedule.
7.
AUTHORITY TO REGISTER AND WAIVER OF RIGHT TO RECEIVE VERIFICATION
STATEMENTS
7.1
The Recipient acknowledges that the Commonwealth may, at the Recipient's cost, register one or
more financing  statements  in  relation  to  any  PPS  Security  Interests  provided  for  by  this  Deed.    If
permitted  by  the  PPSA,  the  Recipient  waives  its  rights  to  receive  notice  of  any  verification
statement  relating  to  the  registration  of  any  such  financing  statement  or  any  related  financing
change statement.
8.
PPSA CONFIDENTIALITY
8.1
In this clause 8, all references to sections are to sections in the PPSA.
8.2
The  parties  shall  not  disclose  information  of  the  kind  mentioned  in  section  275(1),  except  in  the
circumstances  required  by  sections  275(7)(b)  to  (e).  The  Recipient  shall  obtain  the
Commonwealth's consent  before authorising the  disclosure of information under section  275(7)(c)
or  requesting  information  under  section  275(7)(d).    Nothing  in  this  paragraph  prevents  any
disclosure  by  the Commonwealth that  it  believes is necessary to comply  with its other obligations
under  the  PPSA,  or  any  other  law  or  statutory  or  portfolio  duties,  or  required  for  public
accountability  reasons,  including  following  a  request  by  a  minister,  parliament  or  a  parliamentary
committee.
8.3
To  the  extent  that  it  is  not  inconsistent  with  clause  2.2  of  this  Schedule,  constituting  a
"confidentiality  agreement"  for  the  purposes  of  section  275(6)(a),  the  Recipient  agrees  that  the
Commonwealth may disclose information of the kind mentioned in section 275(1) to the extent that
the  Commonwealth  is  not  doing  so  in  response  to  a  request  made  by  an  "interested  person"  (as
defined in section 275(9)) pursuant to section 275(1).
9.
CONTRACTING OUT OF THE PPSA
9.1
To  the  extent  that  Chapter  4  of  the  PPSA  would  otherwise  apply  to  an  enforcement  by  the
Commonwealth of any PPS Security Interest provided for by this Deed, the parties agree that the
following provisions of the PPSA do not apply, to the extent the PPSA allows them to be excluded:
a.
(enforcement  methods)  sections  125  (Obligation  to  dispose  of  or  retain  collateral),  129(2)
and  (3)  (Disposal  by  purchase),  134(2)  (Proposal  of  secured  party  to  retain  collateral)  and
137 (Persons entitled to notice may object to proposal);
b.
(notices) sections 95 (Secured party must give notice of removal of accession), 130 (Notice
of disposal of collateral), 132 (Secured party to give statement of account), and 135 (Notice
of retention of collateral) and 136(5) (Retaining collateral free of interests); and
c.
(rights to remedy) sections 142 (Entitled persons may redeem collateral) and 143  (Entitled
persons may reinstate security agreement).
INTERESTS IN MOBILE EQUIPMENT
10.
DEFINITIONS
10.1
For the purposes of this Schedule:
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a.
“Cape Town Convention” has the meaning given to that term in the International Interests
in Mobile Equipment (Cape Town Convention) Act 2013 (Cth);
b.
“International Registry” has the meaning given in the Cape Town Convention; and
c.
unless the context requires otherwise, terms have the meanings given  to them in the Cape
Town Convention.
11.
CAPE TOWN CONVENTION
11.1
The  Recipient  authorises  and  consents  to  the  registration  of  any  international  interest  constituted
by this clause, for the purposes of the Cape Town Convention.
11.2
The  Recipient  agrees  to  cooperate  and  to  take  such  actions  as  are  necessary  to  enable  the
Commonwealth  to  register  each  international  interest  created  under  this  clause,  with  the
International Registry.

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ATTACHMENT E - RELEVANT DOCUMENTS

1.
RELEVANT DOCUMENTS
1.1
The following additional documents are applicable to this Deed:
a.
[ANY RELEVANT DOCUMENTS WILL BE LISTED AND COPIES ATTACHED]

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