PARTICIPATING FUNDS AGREEMENT BETWEEN AND - Host-Plus Pty Ltd (ABN 79 008 634 704) as trustee of the Hostplus Superannuation Fund INDUSTRY SUPER ...

 
PARTICIPATING FUNDS AGREEMENT BETWEEN AND - Host-Plus Pty Ltd (ABN 79 008 634 704) as trustee of the Hostplus Superannuation Fund INDUSTRY SUPER ...
HOS.0031.0001.0001

              PARTICIPATING FUNDS AGREEMENT

                           BETWEEN

Host-Plus Pty Ltd (ABN 79 008 634 704) as trustee of the Hostplus
                     Superannuation Fund

                              AND

    INDUSTRY SUPER AUSTRALIA Pty Ltd (ACN 158 563 270)

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Table of Contents
PARTIES ........................................................................................................................................ 3
INTRODUCTION ........................................................................................................................... 3
     1. DEFINITIONS .................................................................................................................... 3
     2. FUND CONTRIBUTIONS ................................................................................................... 4
     3. FUND PARTICIPATION IN THE PROGRAM ...................................................................... 4
     4. WARRANTIES ................................................................................................................... 5
     5. INTELLECTUAL PROPERTY RIGHTS .................................................................................. 5
     6. CONFIDENTIALITY ............................................................................................................ 6
     7. PRIVACY ........................................................................................................................... 6
     8. TERM ................................................................................................................................ 6
     9. TERMINATION ................................................................................................................. 6
     10. INSURANCE AND INDEMNITIES ...................................................................................... 7
     11. DISPUTE RESOLUTION ..................................................................................................... 7
     12. NOTICES ........................................................................................................................... 8
     13. INTERPRETATION............................................................................................................. 8
     14. GENERAL .......................................................................................................................... 8
EXECUTION ................................................................................................................................ 10
SCHEDULE 1 ............................................................................................................................... 11
SCHEDULE 2 ............................................................................................................................... 12

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PARTIES
This Participating Funds Agreement is made between

Host-Plus Pty Ltd, ABN 79 008 634 704 as Trustee of the Hostplus Superannuation Fund of Level 9, 114
William Street Melbourne Victoria 3000 (Hostplus)

AND

Industry Super Australia Pty Ltd (ACN 158 563 270) of Level 39, Casselden Place, 2 Lonsdale Street,
Melbourne, Victoria 3000 (ISA)

INTRODUCTION
A.    ISA undertakes collective activities including the Joint Marketing Campaign, policy, research,
      government relations and public advocacy work on behalf of Participating Funds (the Program) with
      the aim of maximising the retirement benefits of members of Participating Funds.

B.    The Participating Fund has agreed to participate in the Program on the terms and conditions set out
      in this Agreement (Agreement).

C.    ISA agrees to provide the Program to the Participating Fund.

1.    DEFINITIONS
      In this Agreement unless the context clearly indicates otherwise:
      Business Day means a day that is not a Saturday, Sunday or gazetted public holiday in Victoria,
      Australia.
      Commencement Date means the date set out in clause 8.
      Confidential Information means:
        a) all internal information and know-how relating to the business or affairs of the Parties,
           regardless of its form and whether the Parties become aware of it before or after the
           Commencement Date of this Agreement;
        b) the terms of this Agreement and negotiation of the terms of this Agreement;
        c) all notes and other records prepared by the Parties based on or incorporating information
           referred to in paragraphs (a) or (b);
        d) any specific confidential information described in the Schedules;
        e) all copies of the information, notes and other records referred to in paragraphs (a), (b) or (c);
           and
        f)   any information designated by the disclosing party as confidential or identical in terms
             connoting its confidentiality and confirmed as confidential to the recipient by a Party,
        but does not include information which is in or becomes part of the public domain, other than
        through a breach of this Agreement or a breach of an obligation of confidence owed by ISA or the
        Participating Fund to the other or is required to be disclosed by law.
      Financial Year means the year beginning on 1 July and ending on the following 30 June.

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      Fund Contribution means the amount paid by the Participating Fund each Financial Year in
      accordance with clause 2.
      GST means any form of goods and services tax payable under the GST Law.
      GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
      Intellectual Property Rights means all rights conferred by statute, common law or equity or in
      relation to copyright, trademarks, designs, logos, patents, inventions and confidential information,
      and all other results of intellectual activity in any field whether or not registrable, registered or
      patentable.
      Joint Marketing Campaign means the marketing campaign which ISA implements and manages on
      behalf of the Participating Funds.
      Liability means any debt, obligation, claim, action, cost (including legal costs on an indemnity basis,
      deductibles or increased premiums), expense, loss (whether direct or indirect), damage, losses,
      compensation, charge or liability of any kind (including fines or penalties), whether it is:
          a) actual, prospective or contingent; or
          b) currently ascertainable or not,
      whether incurred or payable under this Agreement or otherwise at law.
      Participating Fund means the industry super fund that is named as the Participating Fund to this
      Agreement and that participates in the Program.
      Participating Fund Name and Logo means the name and logo set out in Item 4 of Schedule 1.
      Party means the Participating Fund or ISA as relevant.
      Program means the Program more particularly specified in Item 2 of Schedule 1.
      Program Name, Symbol, Logo and Imagery means the Name, Symbol, Logo and Imagery set out in
      Item 5 of Schedule 1.
      Term means the period set out in clause 8.

2.    FUND CONTRIBUTIONS
2.1   In or before May each year, ISA will write to the Participating Fund setting out the Fund Contribution
      payable by the Participating Fund for the next Financial Year.
2.2   The Participating Fund’s Fund Contribution is payable by quarterly instalments in arrears. Payment by
      the Participating Fund is to be made within 28 days of the date of the tax invoice.
2.3   The Fund Contribution will increase each Financial Year by an amount equivalent to the increase in
      the Consumer Price Index published by the Australian Bureau of Statistics for the year ended 30
      March.
2.4   Fund Contributions payable by the Participating Fund under this Agreement are exclusive of GST.

3.    FUND PARTICIPATION IN THE PROGRAM
3.1   In consideration of the Participating Fund making the Fund Contribution to ISA, ISA agrees to allow
      the Participating Fund representation in the Program.
3.2   The components of the Program are set out in Item 2 of Schedule 1.
3.3   Performance measures for the Program are determined in accordance with Item 3 of Schedule 1.

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3.4   ISA acknowledges and agrees that it will not publically use or disclose information regarding the
      Participating Fund during the course of the Program without the prior written consent of the
      Participating Fund.

4.    WARRANTIES
4.1   Each Party makes the following representations and gives the following warranties to the other
      Party:
      (a)   The execution of this Agreement does not contravene any law, regulation or contractual
            restriction binding on the Party.
      (b)   The execution of this Agreement does not breach any existing agreement, arrangement or
            understanding with any other person or infringe their rights, including the Intellectual Property
            Rights of any third party.
      (c)   One Party will not do or omit to do anything that potentially or actually brings the other Party,
            or its products, brands or services into disrepute.
      (d)   Each Party has the necessary skills, experience and resources to perform its obligations under
            this Agreement.

5.    INTELLECTUAL PROPERTY RIGHTS
5.1   Ownership
      Except as provided in this clause nothing in this Agreement affects the ownership of a Party’s
      Intellectual Property Rights.
5.2   Participating Fund’s Name and Logo
            a)    The Participating Fund grants to ISA a non-exclusive, non-transferable, royalty-free,
                  irrevocable licence to use the Participating Fund’s Name and Logo as set out in Item 4 of
                  Schedule 1 for the purpose of the Program only.
            b)    ISA acknowledges that the granting of the licence in (a) above does not do not confer
                  any property right or interest in the Participating Fund’s Name and Logo or any right to
                  sub-license.
            c)    ISA must comply with any guidelines notified in writing to ISA by the Participating Fund
                  regarding the manner, depiction and representation of the Participating Fund's Name
                  and Logo.

5.3   Program Name, Symbol, Logo and Imagery
      (a)   ISA grants to the Participating Fund a non-exclusive, non-transferable, royalty-free, irrevocable
            licence to use the Program Name, Symbol, Logo and Imagery and other intellectual property
            associated with the Joint Marketing Campaign as set out in Item 5 of Schedule 1.
      (b)   The Participating Fund must comply with the Joint Marketing Campaign Leveraging Guidelines
            & Compliance Protocol, attached as Schedule 2 of this Agreement, and updated from time to
            time by ISA. For the avoidance of doubt this includes the Participating Fund seeking prior
            written approval from ISA, before making use of the Program Name, Symbol, Logo and
            Imagery and other intellectual property associated with the Joint Marketing Campaign as set
            out in Item 5 of Schedule 1.
      (c)   ISA must:

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            a)     not intentionally do, cause or authorise the doing of anything, which may adversely
                   affect or jeopardise:
                   (A)   the distinctiveness of the Participating Fund’s Name and Logo;
                   (B)   the goodwill in or value of the Participating Fund’s Name and Logo;
                   (C)   the Participating Fund’s right, title or interest to the Participating Fund’s Name
                         and Logo; or
                   (D)   the Participating Fund’s right to register the Participating Fund’s Name and Logo,
                         and/or maintain the registration of the Participating Fund’s Name and Logo.

6.    CONFIDENTIALITY
6.1   A Party will not, without the prior written approval of the other Party, disclose Confidential
      Information of the other Party to any other person other than:
      (a)   as required by law or to the extent the information is already in the public domain;
      (b)   to its related companies and to its solicitors, auditors, insurers and accountants, for the
            purposes of obtaining professional advice; or
      (c)   to the extent necessary for either Party to perform or enforce its rights or obligations under
            this Agreement.
6.2   Each Party will take all reasonable steps to ensure that its employees and agents, and any sub-
      contractors engaged for the purposes of this Agreement, do not make public or disclose the other
      Party’s Confidential Information.
6.3   This clause will survive the termination or expiry of this Agreement.

7.    PRIVACY
7.1   Neither Party will collect, use or disclose any personal information shared under this agreement for
      any purpose other than to discharge its obligations under this Agreement.
7.2   The Parties agree to comply at all times with their obligations in the Privacy Act 1988 (Cth) (Privacy
      Act) and the Australian Privacy Principles including taking all necessary steps to protect personal
      information in its possession against misuse or loss.
7.3   The Parties will immediately notify the other in writing if there has been a breach of privacy or data
      loss involving personal information so the other can determine if it required to notify any person or
      regulator.
7.4   This clause will survive the termination or expiry of this Agreement.
7.5   For the purpose of this clause, personal information has the meaning given to it in the Privacy Act.

8.    TERM
      This Agreement will commence upon execution by both Parties and will continue until it is
      terminated by either Party.

9.    TERMINATION
9.1   Either Party can terminate this Agreement by giving 3 months’ notice prior to the end of each
      Financial Year.

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9.2   In addition to the right to terminate this Agreement in accordance with clause 9.1, either Party can
      terminate this Agreement at any time and with immediate effect by giving notice to the other Party
      if, in the absolute opinion of the Party, its legal position, image, reputation or brand name or the
      reputation or brand name of the Program has been or could be adversely affected by continuing the
      Agreement. Any such termination shall be effective on the date specified in the notice.
9.3   Upon termination in accordance with this clause:
      (a)   each Party retains its rights under this Agreement and at law in respect of any breach of this
            Agreement by the other Party;
      (b)   the Participating Fund’s Fund Contribution is payable pro-rata up to the date of termination;
      (c)   ISA must at its own expense seek to remove and from the termination date cease to
            deliberately refer to or use the Participating Fund’s Name and Logo in connection with the
            Program or otherwise; and
      (d)   the Participating Fund must at its own expense and from the termination date remove and
            immediately cease to deliberately refer to or use Program Name, Symbol, Logo and Imagery.

10.   INSURANCE AND INDEMNITIES
10.1 Indemnity
      ISA indemnifies and holds harmless the Participating Fund against all Liability arising from or
      incidental to:
      (a)   any negligence, fraud or wilful act or omission by ISA or any of its employees, agents or
            contractors;
      (b)   any breach by ISA of the provisions of this Agreement or any law or other regulatory
            requirement; and
      (c)   any injury to, or death of, a natural person and any loss of or damage to, the real or personal
            property of an Indemnified Party or a third party caused or contributed to by ISA, or its
            employees, agents or contractors
       except to the extent that any Liability is caused or contributed to by any negligence, fraud or wilful
       act or omission of the Participating Fund, its employees, agents or contractors.

10.2 Risk and Insurance
      ISA must effect and maintain, at its own cost, all insurances as would be required by a prudent
      person responsible for the Program including insurance against liability for injury to employees,
      contractors, volunteers, officials, participants, supporters and members of the public and damage to
      property.
10.3 ISA must, at the request of the Participating Fund, provide the Participating Fund with copies of any
     insurance policies obtained in accordance with clause 10.2.
10.4 ISA must observe, perform and comply with all warranties and conditions in all insurance policies
     that ISA obtains in accordance with clause 10.2, and ensure that all premiums are paid when due.

11.   DISPUTE RESOLUTION
11.1 If a dispute arises under this Agreement, either Party may at any time give notice to the other
     requesting that a meeting take place to seek to resolve the dispute.

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11.2 Nominated senior representatives of both Parties must meet within 10 business days of the notice
     and endeavour to resolve the dispute in good faith or agree that the dispute be submitted to
     mediation or another alternative dispute resolution process.
11.3 Following notice being issued under this clause, either Party may pursue its rights at law if:
      (a)   such a meeting does not take place; or
      (b)   after 10 business days of the meeting the dispute remains unresolved; or
      (c)   an agreement that the dispute be submitted to mediation or another alternative dispute
            resolution process is not reached.
11.4 Nothing in this clause precludes the Parties from seeking interlocutory relief.

12.   NOTICES
12.1 Notice
      Any notice given by either Party to the other under this Agreement will be in writing and (without
      prejudice to the use of any other method) be given by being sent by pre-paid letter, post, email or
      facsimile addressed to the Party at its address as set out in Item 1 of Schedule 1 and any such notice
      if so posted will be deemed to be given five (5) business days following the day of posting or if sent
      by email or facsimile, within two (2) business days of the day of such sending.

13.    INTERPRETATION
13.1 In this Agreement the following rules of interpretation apply unless the contrary intention appears:
      (a)   Headings are for convenience only and do not affect the interpretation of this Agreement.
      (b)   The singular includes the plural and vice versa.
      (c)   Words that are gender neutral or gender specific include each gender.
      (d)   The words ‘such as’ ‘including’ and similar expressions are not used as, nor are intended to be
            interpreted as words of limitation.
      (e)   A Party includes its agents, successor and permitted assigns.
      (f)   A document includes all amendments and supplements to that document.
      (g)   A clause, term, Party, schedule or attachment is a reference to a clause or term of, or Party,
            schedule or attachment to this Agreement.
      (h)   This Agreement includes all schedules and attachments to it.
      (i)   Any monetary amount is in Australian dollars and all amounts payable under or in connection
            to this Agreement are payable in Australian dollars.
      (j)   When the day on which a thing must be done is not on a Business Day, that thing must be
            done on the following Business Day.
      (k)   No rule of construction applies to the disadvantage of a Party because that Party was
            responsible for the preparation of this Agreement or any part of it.

14.   GENERAL
Entire Agreement
      This Agreement embodies the entire agreement between the Parties and supersedes any prior
      agreement or understanding between the Parties. There are no agreements, representations or

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      warranties oral or written between the Parties other than those set forth or provided for in this
      Agreement.
Relationship of Parties
      (a)    Nothing in this Agreement creates a joint venture, partnership, or the relationship of principal
             and agent, or employee and employer between the Parties.
      (b)    Neither Party has the authority to bind the other Party by any representation, declaration or
             admission, or to make any contract or commitment on behalf of the other Party, or to pledge
             the other Party’s credit.
Variation of Contract
      This Agreement may only be varied by a document duly executed in writing by the Parties.
Assignment
      The rights and obligations of the Parties under this Agreement are personal to them and cannot be
      assigned, charged or otherwise dealt with, and the Parties will not attempt nor purport to do so,
      without the prior written consent of the other Party (where such consent must not be unreasonably
      withheld).
Severance
      If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down
      so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the
      offending part) is to be severed from this Agreement without affecting the enforceability, validity or
      legality of the remaining clauses (or parts of those clauses) which will continue in full force and
      effect.
Waiver
      No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by
      the Party granting it. It is only effective in the specific instance and the specific purpose for which it is
      granted. A single or partial exercise of a right or remedy under this Agreement does not prevent a
      further exercise of that or any other right or remedy.
Governing Law
      This Agreement will be governed by and construed in accordance with the laws of Victoria.
Counterparts
      This Agreement may be executed in any number of counterparts, and this has the same effect as if
      the signatures on the counterparts were on a single copy of this Agreement. Without limiting the
      foregoing, if the signatures on behalf of one Party are on different counterparts, this shall be taken to
      be, and have the same effect as, signatures on the same counterpart and on a single copy of this
      Agreement.

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EXECUTED AS AN AGREEMENT

Executed for and on behalf of Host-Plus Pty Ltd        Executed for and on behalf of Industry Super
(ABN 79 008 634 604) as trustee of the Hostplus        Australia (ACN 158 563 270) by its duly authorised
Superannuation Fund in accordance with                 representative:
section 127 of the Corporations Act 2001:

Signature of Director                                  Signature of authorised representative

Full Name of Director                                  Full Name of authorised representative

Signature of Director/Secretary                        Title of authorised representative

Full Name of Director/Secretary

Date:                                                  Date:

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                                      Schedule 1
Item     Details
Item 1
         INDUSTRY SUPER AUSTRALIA PTY LTD

         ACN: 158 563 270

         Address for Service: Level 39, Casselden, 2 Lonsdale Street, Melbourne
         Attention: Chief Executive

         Name: Host-Plus Pty Ltd as trustee of the Hostplus Superannuation Fund
         ABN: 79 008 634 704
         Address for Service: Level 9, 114 W illiam Street, Melbourne, Victoria 3000
         Attention: Chief Executive Officer
Item 2   The Program
         The Program includes:

         •   Joint Marketing Campaign
         •   Public Relations and Communications activity

         •   Policy and Research

         •   Government Relations

         •   Any other activity approved by the ISA Board

Item 3   Performance Measures for the Program (refeir clause 3.3)
         The Joint Marketing Campaign Steering Committee will approve Key Performance
         Indicators for the Joint Marketing Campaign on an annual basis as part of the
         approval of the Jo int Marketing Campaign Bus iness Plan.
         The ISA Board will approve Key Performance Indicators for components of the
         Program (other than the Joint Marketing Campaign) as part of the annual ISA
         Business Plan.
ltem4    Participating Fund's Name and Logo

         HOSTPLUS
Item 5   Program Name, Symbol logo and imagery

             lndust[Y
             SuperFunds

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