INTERSECT AUSTRALIA LIMITED – MEMBERS CHARTER (JUNE 2008)
The Members charter is legally binding on Members of Intersect Australia Limited (“the Company”) and is given effect through the Constitution of the Company.
1. PRINCIPLES OF MEMBERSHIP
1.1 The following principles are fundamental to the business conducted by the Company:
(a) The Company is founded on a co-operative basis between its Members as a company limited by guarantee to pursue the purposes set out in Rule 2 of the Constitution of the Company, as may be varied from time to time.
(b) Membership of the Company requires an ongoing obligation on each Member to act in good faith to each other Member and to the Company as a whole and not to engage in conduct prejudicial to the interests of the Company.
(c) Membership of the Company requires that each Member adheres strictly to the obligations imposed on Members which are set out in key company documents including, but not limited to:
(i) the membership policy adopted by the Board from time to time;
(ii) the Constitution of the Company , as varied from time to time;
(iii) any Project Agreement entered into between the Company and a Member; and
(iv) any agreement for the provision of goods or services entered into between the Company and a Member;
(v) this Members Charter.
(d) The Company has obligations to its Members and is accountable to them through the governance structures set out in the Constitution and policies and procedures adopted by the Board from time to time.
(e) In the event of any inconsistency between this Members Charter, the Constitution, a Project Agreement or other agreement, the order of precedence shall be:
(i) the Constitution; then
(ii) the Members Charter; then
(iii) the Project Agreement or other agreement as the case may be.
(f) The issues listed in Schedule 1 are Special Majority issues and require the passing of a Special Resolution at a General Meeting of the Company to give effect to them.
(g) For the purposes of this Members Charter the term Special Resolution has the same meaning as that term has in the Corporations Act, 2001.
2.1 Founding Members must provide the Company with the Membership Fees (in cash or kind) noted against their respective names as specified in Schedule One of the Members Charter.
2.2 Membership Fees, and Annual Subscription Fees for all categories of membership shall be set by the Board from time to time. The Board shall not alter the fees payable by Founding Members prior to the Initial Period End Date, as defined in the Constitution, subject to the terms of this Members Charter.
2.3 The Members will take all steps they deem necessary to ensure that the Company does not carry on any activities other than those contemplated by the Constitution, or any activities incidental thereto, unless the Members otherwise determine by Special Majority.
2.4 A new Member shall not be eligible to assume Membership without the proposed Member making application to the Board, in a form reasonably satisfactory to the Board, under which the proposed Member agrees to be bound by the terms and conditions of the Constitution (including the Members Charter), subject to any amendments that may be agreed to by the existing Members, which amendments may include but not be limited to matters relating to the determination of the future allocation of resources and contributions between the Members.
2.5 The Company acknowledges that a Member must not act ultra vires its own constitution or enabling statute.
2.6 Notwithstanding any other provision to the contrary contained in this Members Charter, or the Constitution, the Company and the Members acknowledge and agree that the obligation of a Founding Member to pay Membership Fees:
(a) arises, as to 50% of the first annual payment payable by the Founding Member, only if the Company receives, before 31 December 2008, the approval of the Executive Committee of the Australian Research Collaboration Services (“ARCS”) to the Company becoming a member of ARCS by replacing ac3 Pty Limited, such payment becoming payable upon receipt of notice at any time before 31 December 2008 from the Company to the Founding Member that such approval has been given; and
(b) as to any amount referred to in clause 2.6(a) not having become payable before 31 December 2008, and as to the amounts payable for the second, third and fourth years of the Initial Period, payment shall be at the election of the Member if the Company has not, by close of business on 31 December 2008, received the approval of ARCS to the Company becoming a member of ARCS, by replacing ac3 Pty Limited.
3. BOARD OF DIRECTORS
3.1 The election and appointment of Directors shall be as set out in rules 22 and 23 of the Constitution.
3.2 For the purposes of Rule 24.1. of the Constitution, the Initial Directors are:
(a) Professor Mark Wainwright
(b) Professor Sue Rowley
(c) Professor James Dalziel
(d) Dr Michael Briers
(e) Mr John Shipp
(f) Mr John Masters
(g) Mr Peter Nikoletatos
3.3 For purpose of determining the period of tenure of each Initial Director, pursuant to Rules 24.1.1, 24.1.2 and 24.1.3, the determination shall be made by the Board by the drawing of lots.
3.4 Upon any Member ceasing to be a Member in the Company, the person(s) nominated as director(s) by that party cease to be director(s) of the Company.
3.5 The Board may, pursuant to the terms of the Company’s constitution, form advisory sub committees and constitute the members of the committee, either from amongst the directors of the Company or from such other persons with the requisite qualifications determined by the Board. A member of a committee is not a Member of the Company and has no voting rights in respect of any business of the Company.
4.1 The Members agree that in carrying on the affairs of the Company, when the Company requires goods and/or services that can be provided by a Member the following rules will apply:
(a) the Member will be given a fair and equal opportunity to bid to provide such goods and/or services;
(b) if the Member’s proposal is at least equal to the best proposal received by the Company from a third party that Member will be given preference in the allocation of that business; and
(c) if the Company receives proposals from more than one Member, which are equal, the Company will perform a ballot to determine which of the Members is to be allocated the business unless otherwise agreed by unanimous
resolution of the Board.
5.1 It is a fundamental condition of membership of the Company that the Board of the Company is empowered to determine and communicate to Members the specific criteria for inclusion of any Member as a nominated Project participant or formal partner in a Company contract proposal or tender. These criteria will include, but are not limited to:
(a) Past performance in delivering the program/service;
(b) Demonstrated capacity to deliver the program/service in the research area for which the tender is proposed;
(c) Demonstrated research linkages including mechanisms for promoting engagement of the relevant research community.
5.2 The Company will apply these criteria impartially when selecting a nominated Project participant or a partner for a Company contract proposal or tender.
5.3 A member affected by a decision of the Company to select a Project participant or partner may seek review of the decision through a Board disputes committee which will consider any request for review within 10 business days of receipt.
5.4 A Member who fails to provide information required for a contract proposal or tender within specified timeframes may be excluded from participation in the contract proposal or tender.
6. CONTRACT PROPOSAL OR TENDER
6.1 It is a fundamental principle of membership of the Company that a Member is entitled to receive the benefits of membership on the basis that it is acting in concert with and on a co-operative basis with its fellow Members.
6.2 A Member which has entered into an agreement with the Company to deliver a Project or service must not tender, in its own right, for that same, or substantially similar, Project or service, or any successor program, whilst remaining as a Member of the Company, unless the prior written consent of the Company has first been obtained.
6.3 A Member which submits a proposal or tender to which clause 6.2 applies, in its own right without prior consent being first obtained from the Company is acting in a manner prejudicial to the interests of the Company and its members and is liable to forfeit its membership, in accordance with the provisions of the Constitution.
6.4 A Member affected by a decision of the Company to refuse consent may seek review of the decision through a Board disputes committee which will consider any request for review within 21 business days of receipt.
7. CONFLICT OF INTEREST
7.1 Board members and senior staff of member organisations must disclose their personal involvement with any other company organisation which is in the same, or substantially similar, business to that of the Company or may be reasonably expected to be in the same, or substantially similar, business to that of the Company in the future.
7.2 Failure to disclose such interest on behalf of a senior staff member or Board member of an organisation is considered to be an action prejudicial to the interests of the Company for the purposes of the Constitution.
7.3 The Company will maintain a register of the interests of its Directors and Senior Staff which will be made available to a member organisation on request.
8. NO ACTION TO DAMAGE THE COMPANY OR MEMBERS
8.1 Members will not, in their practice, behaviour or communication, oral or written, including with customers, clients and jobseekers or the media, demean or impugn the reputation of a Member, the Company or its employees.
8.2 Members will not wilfully seek to bring the Company or any member into disrepute, or otherwise behave in any manner or pursue any practice that may bring the Company or any member into disrepute.
9.1 Member organisations must meet the governance and reporting requirements of the legislation under which they are incorporated and other relevant legislation which applies to the Member.
9.2 Each Member independently agrees that a failure on its part to comply with any provision of this Members Charter will constitute conduct prejudicial to the interests of the Company, for the purposes of the Constitution and may result in the member forfeiting membership in The Company.
10. CONFIDENTIAL INFORMATION
10.1 Confidential Information exists and may come into existence in relation to the performance by the Company and the Members of their obligations under the Constitution, a Project Agreement or other agreements with the company. In the provision of Confidential Information to the Company or another Member the following principles apply:
(a) each party providing Confidential Information to another Member or the Company is and at all times will remain the sole proprietor of its Confidential Information;
(b) Confidential Information is secret and confidential;
(c) each party has an obligation of confidence in respect of Confidential Information of all other parties;
(d) no party has any licence or right, whether express or by implication, estoppel or otherwise, in respect of the Confidential Information of another party other than the right to use that Confidential Information in accordance with the provisions of the Constitution, a Project Agreement or another agreement with the Company.
10.2 The Company and each Member will:
(a) treat Confidential Information as secret and confidential and as the property solely of that party;
(b) not use such Confidential Information for any purpose other than the performance of its obligations pursuant to the Constitution;
(c) restrict the disclosure of Confidential Information to those Members of its staff and other professional consultants who require Confidential Information to enable it to perform its obligations pursuant to this Agreement;
(d) immediately notify the party to whom the Confidential Information belongs in writing if any person has disclosed or is suspected by it of disclosing or intending to disclose any Confidential Information to any other person otherwise than in accordance with this clause; and
(e) neither expressly nor impliedly disclose the existence of Confidential Information.
10.3 The Company may suspend the provision of Confidential Information to a member if it forms the opinion, reasonably formed, that such Confidential Information is being used for a purpose not related to the Company.
10.4 For the purposes of this clause ‘Confidential Information’ includes but is not limited to all trade secrets, know-how, financial information, Data and other commercially valuable information of whatever description and in whatever form (whether written or oral, visible or invisible) disclosed by one Party to another and includes, without limitation, Background IP and other confidential Intellectual Property.
11. NEW MEMBERS
11.1 The Company Secretary shall, prior to the next meeting of the Board after receipt of the application for membership, forward to each Director of the Company a copy of the application for membership.
11.2 Criteria for acceptance of new members will include:
(a) Research goals and capacities;
(b) evidence of effective governance;
(c) financial viability;
(d) consistency of organisational goals with those of the Company;
(e) extent to which the proposed Member’s operations are or may be in competition with or complementary to the Company’s existing operations;
(f) ability to contribute to the future performance and growth of the Company.
11.3 Additional criteria may be established from time to time and will be the subject of consultation with member organisations prior to implementation.
12. TRANSPARENCY IN DECISION MAKING
12.1 The Company will advise members of significant decisions made by the Board.
12.2 Each member organisation has a right to access the following core documents on request:
(a) Board policies;
(b) The Company Strategic Plan;
(c) Audited financial statements of The Company.
13. CHANGE IN OBLIGATIONS OF MEMBERS
13.1 Any proposed change to the Constitution or the Members Charter will be subject to consultation with members and can only be given effect via a Special Resolution at the Annual General Meeting or a Special General Meeting of the company.
14. ACCOUNTABILITY OF THE COMPANY
14.1 The Board is accountable to its members for the overall performance of the Company.
14.2 The Company will operate on the basis of transparency in its decision making and the Board will consult with Members in relation to significant issues to the extent practicable.
15. BACKGROUND INTELLECTUAL PROPERTY
15.1 From time to time a Member may make Background Intellectual Property available for the conduct of a Project but not for any commercialisation purposes pursuant to the terms of a Project Agreement by way of a non-exclusive, royalty free, world wide license or otherwise on such terms as are specified in the Project Agreement.
15.2 A Party that wishes to use Background Intellectual Property of another Party outside of a Project must first obtain a non‑exclusive licence upon terms agreed by the provider and reduced to writing.
15.3 The Company and each Member will:
(a) take all necessary steps to safeguard and preserve Background Intellectual Property in the course of using the Background Intellectual Property in conducting a Project;
(b) give each other prompt notice of any infringement of Background Intellectual Property which comes to their attention;
(c) give the provider all assistance, which the provider reasonably requires to protect its Background Intellectual Property, (as long as the provider indemnifies the Party providing the assistance for all reasonable costs and expenses of doing so); and
(d) comply with all relevant confidentiality obligations imposed under any contract with a third party or by any regulatory authority having jurisdiction over the Background IP of the provider.
15.4 ‘Background Intellectual Property’ or ‘Background IP’ means, in relation to a Project:
(a) Intellectual Property specified in the Project Agreement that a Project Party has agreed to contribute as Background IP to the Project; and
(b) Any other Intellectual Property that the Project Party has offered to contribute as Background IP for the Project and has been agreed in writing by all Project Parties as being accepted as Background IP for the Project, and for the avoidance of doubt does not include any Company IP.
16. COMPANY INTELLECTUAL PROPERTY
16.1 The Company will own all Company Intellectual Property legally and beneficially.
16.2 Each Member must:
(a) cooperate with each other Member and promptly do all things and execute all documents necessary to vest ownership of the Company Intellectual Property in the Company (provided the Company indemnifies the Party providing the assistance for all reasonable costs and expenses of doing so).
(b) respond promptly to a request from the Chief Executive Officer to provide information in its possession about existing or potential Company Intellectual Property;
(c) use its reasonable efforts to ensure that its Personnel (including Nominated Personnel), and postgraduate students under its supervision or other people participating in the Project promptly:
(i) identify Company Intellectual Property generated or developed by them and register that Company Intellectual Property in the Intellectual Property Register;
(ii) communicate details of it to the relevant Program Leader; and
(iii) do all things and execute all documents necessary to vest ownership of the Company Intellectual Property in the Company.
16.3 If a Program Leader or Member considers that a development arising from a Project may be protectable by Registered Intellectual Property Right, the Program Leader or Member must promptly communicate details of that development to the Chief Executive Officer for communication to the Board.
16.4 The Board, or the members of a sub committee appointed by the Board, will determine whether the development of any Company IP warrants protection by registration, and if it does, in which countries protection should be sought. In making the determination the Board, or the sub committee, may seek appropriate professional advice.
16.5 As long as a Member uses reasonable endeavours not to prejudice the Company’s ability to:
(a) protect Company Intellectual Property by Registered Intellectual Property Right; or
(b) maximise the benefits to the Company and Australia of any Company Intellectual Property that has significant commercial potential;
each Member has a non exclusive royalty free right to use Company Intellectual Property for internal research and educational purposes outside the Projects, but not Commercialisation. If any Company Intellectual Property is exclusively licensed or assigned, the Company must ensure that each Member retains its licence as set out in this clause.
16.6 The Company shall have full right title and interest in all Intellectual Property created or developed by the Company, its employees, servants or agents.
16.7 ‘Company Intellectual Property’ or ‘Company IP’ means any Intellectual Property of the Company, whether acquired before or after the date of this Agreement, and:
(a) includes Project IP which vests in the Company pursuant to a Project Agreement; and
(b) includes Non-Project IP; but
(c) does not include Background IP of any Member other than that of the Company.
16.8 ‘Non-Project IP’ means any IP the development of which was funded directly or indirectly by the Company otherwise than as part of a Project.
17. INTELLECTUAL PROPERTY REGISTER
17.1 The Chief Executive Officer must ensure that a person is appointed to maintain the Intellectual Property Register.
17.2 The Intellectual Property Register must contain the following details about Background Intellectual Property:
(a) the provider;
(b) detailed description of the Background Intellectual Property;
(c) the date on which the Background Intellectual Property is made available;
(d) the interests of any person other than the provider in the Background Intellectual Property;
(e) any restrictions on the Company’s ability to use the Background Intellectual Property for a Project.
18. COMMERCIALISING COMPANY INTELLECTUAL PROPERTY
18.1 The Company must use its best endeavours to ensure that, from Commercialisation of Company IP, the Company receives the maximum possible financial return. Further, notwithstanding any provision to the contrary in this Agreement or a Project Agreement, all Commercialisation must be on a commercial arms length basis.
18.2 The Company will be the principal commercialisation arm to commercialise Company IP.
18.3 The consideration payable for any rights to Commercialise Company Intellectual Property will be negotiated in good faith on a normal arms’ length commercial basis taking into account comparable unrelated third party transactions, if applicable.
18.4 If the Company needs a licence of Background Intellectual Property to Commercialise Company Intellectual Property, the provider of the Background IP must enter into good faith negotiations to (subject to pre-existing conditions established when the Background Intellectual Property was originally provided) to licence its Background Intellectual Property for Commercialisation on terms agreed between the provider and the Company. The terms must be no less favourable than those that the provider would offer to any third party in an arm’s length, commercial dealing.
18.5 The Company will pay all expenses associated with the Company commercialising Company Intellectual Property.
18.6 In this Members Charter ‘Commercialise’ or ‘Commercialisation’ in relation to Intellectual Property means:
(a) to manufacture, sell, hire or otherwise use the Intellectual Property for commercial purposes;
(b) if a product incorporates or is derived from Intellectual Property, to use, manufacture, sell, hire, or otherwise dispose of that product for commercial purposes;
(c) if a service uses Intellectual Property, to provide that service for commercial purposes;
(d) to license any third Party to do any of those things; or
(e) to otherwise licence or assign Intellectual Property.
19. SETTLEMENT OF DISPUTES
19.1 The Members must promptly and in good faith attempt to resolve any dispute which arises between them in relation to the operation of the Company before beginning mediation proceedings.
19.2 Except where a Member requires urgent interlocutory injunctive relief, if any Member requires a dispute to be resolved it agrees to do so in accordance with this clause. Each Member and the Company must comply with these provisions before it is entitled to a claim, relief or remedy covering the dispute.
19.3 If a Member or the Company wants a dispute resolved it must:
(a) notify the other Members that the dispute exists;
(b) submit the dispute to the Chairperson for resolution, and if the Chairperson is unable to resolve the dispute within 14 days of its being referred;
(c) submit the dispute to the Board for resolution.
19.4 If the Board is unable to resolve the dispute within 14 days after referral the parties shall be referred the dispute to mediation under the Australian Disputes Resolution Centre mediation rules.
20. OTHER MATTERS
20.1. Force Majeure
Subject to the specific terms of any Project Agreement or other agreement negotiated between a Member and the Company, if a Member is unable to carry out part or all of any obligations under a Project Agreement or other agreement because of Force Majeure, then that obligation is suspended while the Force Majeure exists and the Board will allow the Member a reasonable extension of time to perform that obligation as long as that Member:
(a) gives each other party to the Project Agreement or other agreement, prompt notice of the Force Majeure including reasonable details, and, as far as known, the likely extent to which it will be unable to perform or be delayed in performing that obligation; and
(b) uses every effort to remove that Force Majeure as quickly as possible.
20.2 If the Force Majeure continues after thirty (30) days, the Chief Executive Officer and the Member’s representative will meet to try to achieve a mutually satisfactory resolution to the problem.
20.3 The requirement that a party use every effort to remove any Force Majeure does not require it to settle strikes, lockouts or other labour disputes or claims or demands by any third party on terms contrary to its wishes.
20.4 For purposes of this clause, ‘Force Majeure’ means an act of God, strike, lockout or other interference with work, war (declared or undeclared), blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, government or quasi governmental restraint, expropriation, prohibition, intervention, direction or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining government or quasi government approvals, consents, permits, licences, authorities or allocations, and any other cause which is outside the reasonable control of the Party affected.
20.5 This clause does not apply to any obligation of a Member to pay its Membership Fee or Subscription Fee in accordance with the Constitution or a contribution under a Project Agreement unless such obligation is itself the subject of Force Majeure.
Special Majority Issues
Special Majority Issues means the following issues:
- Establishment or acquisition of a controlling interest in an entity to Commercialise Company IP.
- (Expulsion of a Member) Expulsion of a Member in accordance with the Constitution.
- (Winding up) Take a step to dissolve or wind up the Company.
- (Change in nature of Business) Carrying on activities that are inconsistent with the Objects of the Company.
- (Overseas presence) The registration or recognition as a body corporate in any place outside Australia.
- (Company type) Change the type of the Company.
- (Joint Ventures and Partnerships) Entering into a partnership or joint venture agreement other than in the ordinary business of the activities of the Company.
- (Change of Constitution) Changing the Constitution;
- (Change of Members Charter) Changing the Members Charter.