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Terms and conditions of participation

These Terms govern participation in the Advance Queensland Small Business Innovation Research (SBIR) Initiative conducted by DSITI and facilitated by the Service Provider. Additional information about the SBIR Initiative may be provided through Information Updates.

Outline of the SBIR Initiative

  1. The SBIR Initiative involves an innovative procurement process that encourages Applicants to solve a Challenge and (following the opportunity to attend a preliminary information exchange day, and submission of an application), will be conducted in up to three stages:
    1. the Solution Presentation Day;
    2. the Feasibility Stage; and
    3. the Proof of Concept Stage.
  2. These Terms cover participation in the SBIR Initiative (following a preliminary information exchange day), including;
    1. the submission of an Application and Proposal,
    2. Solution Presentation Day,
    3. the Feasibility Stage and the Proof of Concept Stage; and
    4. the Developed Solution.
  3. Submitted applications will be assessed by an evaluation panel appointed by the Challenge Owner. Following assessment, Applicants may be shortlisted to attend the Solution Presentation Day. The Solution Presentation Day will be an opportunity for Applicants to present their Proposals to DSITI, the Challenge Owner and an evaluation panel appointed by the Challenge Owner. The Challenge Owner has absolute discretion as to which Applicants and how many Applicants are invited to the Solution Presentation Day.
  4. Following the Solution Presentation Day, successful Applicants may then be invited to proceed to the Feasibility Stage. The Challenge Owner has absolute discretion as to which Applicants and how many Applicants are invited to proceed to the Feasibility Stage. Depending on the nature of the Challenge and the Proposal, the Challenge Owner may, in its absolute discretion, invite an Applicant to proceed directly from the Solution Presentation Day to the Proof of Concept Stage.
  5. The objectives of the Feasibility Stage are to:
    1. prove the technical merit of the Proposed Solution;
    2. demonstrate how the Proposed Solution will solve the Challenge;
    3. identify how the Proposed Solution will operate within any design parameters identified by the Challenge Owner;
    4. identify any technical problems, production barriers or other risks, and viable actions to address them;
    5. determine if the Proposed Solution can proceed to the Proof of Concept Stage;
    6. identify key activities and proposed outcomes for the Proof of Concept Stage;
    7. determine the commercial potential and route to market, including anticipated lead time to market, for the Proposed Solution; and
    8. develop an early prototype/model for testing based on the needs of the Challenge Owner.
  6. Following the Feasibility Stage, the outcomes will be assessed by the Challenge Owner and an evaluation panel appointed by the Challenge Owner. The outcomes of the Feasibility Stage may also be independently assessed. Following assessment successful Applicants may then be invited to participate in the Proof of Concept Stage. The Challenge Owner has the absolute discretion as to which Applicants and how many Applicants are invited to proceed to the Proof of Concept Stage. An Applicant who has taken part in the Feasibility Stage may not be invited to proceed to the Proof of Concept Stage.
  7. The objectives of the Proof of Concept Stage are to:
    1. develop a working prototype or minimum viable product based on the Challenge Owner’s needs and operating within identified constraints;
    2. undertake a pilot to test and validate the Proposed Solution;
    3. conduct the proof of concept activities identified during the Feasibility Stage, if any;
    4. assess the outcomes of the Proof of Concept Stage against the expected outcomes identified during the Feasibility Stage, if any;
    5. examine the operational requirements to implement the Developed Solution with the Challenge Owner; and
    6. finalise the proposed route to market and necessary steps to enable acquisition of the Developed Solution by the Challenge Owner, as well as by potential customers in the wider market.
  8. Following the Proof of Concept Stage, the outcomes will be assessed by the Challenge Owner and an evaluation panel appointed by the Challenge Owner. The outcomes of the Proof of Concept Stage may also be independently assessed.
  9. Following the Proof of Concept Stage and assessment, the Challenge Owner may in its absolute discretion decide to further develop or acquire the Developed Solution. If so, it is contemplated that the Challenge Owner and the Applicant will negotiate in good faith and enter into a formal agreement for the further development or acquisition of the Developed Solution for a fair market price, having regard to the financial support given to the Applicant under the SBIR Initiative.    
  10. Applicants acknowledge that the Challenge Owner:
    1.  is under no obligation to acquire the Developed Solution; and
    2. may, at its sole discretion, negotiate with any other party at any time, for the acquisition of a solution to the Challenge.
  11. The Applicant acknowledges that if the Challenge Owner agrees to acquire the Proposed Solution, and the Applicant is an information and communication technology (ICT) supplier, it may be required to:
    1. hold industry accreditation (QAssure certification https://qassure.com.au/); and
    2. be accredited under the Queensland Government Information Technology Contracting (GITC) framework (https://publications.qld.gov.au/dataset/gitc-framework and https://www.business.qld.gov.au/industry/ict/supply-ict-government/accreditation-ict-suppliers), including any replacement Queensland Government ICT contracting framework.
    The Applicant acknowledges that it is their sole responsibility to obtain the necessary accreditation prior to contracting with the Challenge Owner for the acquisition of the Developed Solution.

Applicants

  1. Applicants may be individuals or organisations that are interested in developing a solution to the Challenge, but must not be employees of DSITI or the Challenge Owner.
  2. The Applicant must sign an acknowledgement agreeing to these Terms before they may participate in the SBIR Initiative. Upon signing the acknowledgement the Applicant (as well as DSITI and the Challenge Owner) is bound by the Terms.
  3. Where an Applicant is an organisation, the authorised individual representing that organisation must sign an acknowledgement in accordance with clause 2.2, on behalf of the organisation before the organisation may participate in the SBIR Initiative.
  4. An Applicant may participate in the SBIR Initiative with Partners (organisations or individuals), subject to the requirements of clause 5 of these Terms.  . 
  5. Each Applicant warrants that:
    1. (where the Applicant is an organisation), the individual representing the organisation is authorised to agree to these Terms on behalf of the organisation;
    2. it has not been convicted of an offence under the Criminal Code where one of the elements of the offence is that the person is a participant in a criminal organisation within the meaning of s 60A(3) of the Criminal Code; and
    3. it is not subject to an order under, or been convicted of an offence under the Criminal Organisation Act 2009 (Qld).  
    The warranties in this clause 2.5 are provided on an ongoing basis. Each Applicant warrants that it will immediately notify DSITI and the Challenge Owner if the Applicant becomes aware that any warranty made in this clause 2.5 was inaccurate, incomplete, out of date or misleading in any way, or becomes inaccurate, incomplete, out of date or misleading in any way.
  6. DSITI and the Challenge Owner each reserves the right to:
    1. disqualify any individual or organisation from being an Applicant at any time and for any reason in its entire discretion;
    2. remove the Applicant from the SBIR Initiative at any time and for any reason in its entire discretion; and
    3. accept late applications from individuals or organisations seeking to become applicants in the SBIR Initiative.
  7. DSITI and the Challenge Owner have absolute discretion as to which Applicants and how many Applicants attend the Solution Presentation Day. The Challenge Owner has the absolute discretion to determine which Applicants and how many Applicants proceed from the Solution Presentation Day to the Feasibility Stage and/or Proof of Concept Stage.

Submitting an Application

  1. Details of the Challenges will be available on the Website. Prospective applicants interested in solving a Challenge through the SBIR Initiative can attend an information exchange day, and submit an application through the Website outlining their initial Proposal by providing the information requested on the Website. Submission of an application requires the Applicant to agree to these Terms.   
  2. Applications received by DSITI will be assessed by an evaluation panel appointed by the Challenge Owner against the assessment criteria available on the Website. Shortlisted Applicants will be invited by DSITI to attend the Solution Presentation Day.

Solution Presentation Day

  1. Shortlisted Applicants will be invited to attend a mandatory Solution Presentation Day to present their refined Proposal to DSITI, the Challenge Owner, and an evaluation panel. Applicants will be provided with details of the date and location prior to the Solution Presentation Day. Applicants will be required to complete and sign the Acknowledgement form agreeing to these Terms at the Solution Presentation Day.  
  2. Applicants’ Proposals will be assessed against evaluation criteria that will be made available to Applicants prior to the Solution Presentation Day.
  3. As part of their Proposal, Applicants will be required to provide details of their proposed activities and funding amounts. The Challenge Owner may negotiate the proposed activities, timeframes and funding amounts with the Applicant. If the Applicant is selected to proceed to the Feasibility Stage or Proof of Concept Stage, these activities and funding amounts will bind the Challenge Owner and the Applicant, in conjunction with these Terms.
  4. After evaluation of the Proposals, the Challenge Owner in its absolute discretion may select one or more Applicants to proceed to the Feasibility Stage or the Proof of Concept Stage. The Challenge Owner’s decision in that regard is final.
  5. Applicants chosen to proceed to the Feasibility Stage or direct to the Proof of Concept Stage will be notified by the Challenge Owner.

Requirements for Applicants assisted by Partners

  1. Applicants who intend to obtain assistance from Partners during the SBIR Initiative, may do so subject to prior compliance with this clause 5.
  2. The Applicant must provide the Partner’s details to DSITI and the Challenge Owner.
  3. The Applicant will be responsible for ensuring that their Partners comply with these Terms. A breach of these Terms by the Applicant’s Partner will be considered to be a breach of these Terms by the Applicant.
  4. The Applicant must enter into binding agreements with their Partners regarding the Partner’s contribution to the Applicant’s participation in the SBIR Initiative. These binding agreements must be consistent with these Terms.
  5. DSITI and the Challenge Owner each reserve the right to obtain a copy of the binding agreement with the Applicant’s Partner, promptly upon request.
  6. The Applicant must notify DSITI and the Challenge Owner of any breach or possible breach of these Terms by the Applicant’s Partner, including the details of the breach or possible breach and the action taken or to be taken to remedy that breach.
  7. In the event of any breach or possible breach of these Terms by the Applicant’s Partner, DSITI and the Challenge Owner each may:
    1. terminate the Applicant’s participation in the SBIR Initiative; or
    2. direct the Applicant to terminate the involvement of its Partner in the SBIR Initiative; or
    3. accept the action taken by the Applicant or their Partner to remedy the breach; or
    4. take any other action permitted under these Terms.
  8. An Applicant may, at any stage, request approval from DSITI and the Challenge Owner to:
    1. form a new legal entity (for example a company), to replace the existing Applicant in relation to its Proposal and ongoing participation in the SBIR Initiative;

      provided that any such request is:
    2. subject to the approval of DSITI and the Challenge Owner which may be given subject to conditions; and
    3. subject to the new legal entity signing an acknowledgement agreeing to these Terms and any already agreed Schedule 1 or Schedule 2 in relation to the Proposal.

No Compensation or Reimbursement for participation in SBIR Initiative or Solution Presentation Day

  1. All costs associated with participation in the Solution Presentation Day, including the development of Proposals, must be borne solely by Applicants. Neither DSITI nor the Challenge Owner will pay, reimburse or compensate any Applicants for any costs they incur in relation to the Solution Presentation Day.
  2. Any Applicant expending money, making commitments or incurring liabilities on the basis of participating in the SBIR Initiative does so at its own risk and expense.
  3. An Applicant is not entitled to claim compensation or loss from DSITI or the Challenge Owner for any matter arising out of the SBIR Initiative.
  4. The Challenge Owner will contribute Funding towards development of the Proposed Solution for those Applicants proceeding through the Feasibility Stage and/or Proof of Concept Stage, subject to these Terms.

Feasibility Stage Period

  1. The Terms relating to the Feasibility Stage do not come into effect until the Schedule 1 Proposal Activities and Funding for the Feasibility Stage is agreed between the Applicant and the Challenge Owner. Agreement of the Schedule 1 is effected by exchange of signed counterparts of the Schedule 1 between the Applicant and the Challenge Owner. Upon agreement of the Schedule 1 Proposal Activities and Funding, the Schedule 1 binds the Applicant and the Challenge Owner in conjunction with these Terms.   
  2. Where an Applicant is an organisation, the authorised individual representing that organisation must sign the Schedule 1 counterpart in clause 7.1, on behalf of the organisation before the organisation may participate in the Feasibility Stage.
  3. The Terms relating to the Feasibility Stage commence on the day the Applicant and Challenge Owner agree the Schedule 1 Proposal Activities and Funding, and expire eight (8) months after that date.
  4. The Applicant must complete the Feasibility Stage within the timeframes set out in the agreed Schedule 1, or as otherwise agreed to by the Challenge Owner in writing.
  5. For clarity, DSITI agrees to the Schedule 1 agreed between the Applicant and Challenge Owner in accordance with this clause 7, and to the extent necessary authorises the Challenge Owner to agree on DSITI’s behalf.

Feasibility Stage

  1. During the Feasibility Stage, the Applicant will be required to work with the Challenge Owner to test the commercial and technical feasibility of their Proposal, in accordance with the timeframe set out in the agreed Schedule 1.
  2. The Applicant must attend the following sessions:
    1. feasibility kick off meeting; and
    2. at a minimum, monthly meetings with the Challenge Owner, either in-person or by telephone/online, as directed by the Challenge Owner.
  3. The Applicant must:
    1. participate in the Feasibility Stage substantially in accordance with the timing and Proposal activities outlined in the agreed Schedule 1, or as otherwise agreed to by the Challenge Owner in writing;
    2. submit a correctly rendered invoice, within ten (10) business days of the dates outlined in the agreed Schedule 1;
    3. submit to the Challenge Owner a progress Report and final Report outlining the information listed in Schedule 3, within ten (10) business days of the relevant dates outlined in the agreed Schedule 1;
    4. exercise due care and skill in carrying out activities associated with the Feasibility Stage; and
    5. take all reasonable steps to minimise delay in completing the Feasibility Stage.
  4. The Challenge Owner undertakes to, within the best of its ability, provide information requested by the Applicant, within a reasonable period of time, to allow the Applicant to undertake the activities associated with the Feasibility Stage.

Process following the Feasibility Stage

  1. Following the Feasibility Stage, the outcomes will be assessed by the Challenge Owner and may also be independently assessed. Following assessment, successful Applicants may then be invited by the Challenge Owner, in its sole discretion, to participate in the Proof of Concept Stage. 
  2. The Applicant acknowledges that the Challenge Owner does not provide any guarantee that an Applicant will be invited to proceed to the Proof of Concept Stage, irrespective of the results of any assessment conducted by the Challenge Owner.
  3. The Challenge Owner may, in its sole discretion:
    1. invite other Applicants in the SBIR Initiative to participate in the Feasibility Stage for the Challenge, at any time, including after the Applicant has completed the Feasibility Stage or completed their participation in the SBIR Initiative;
    2. invite other Applicants in the SBIR Initiative to participate in the Proof of Concept Stage for the Challenge.
  4. Applicants who are invited to participate in the Proof of Concept Stage will be notified by the Challenge Owner.
  5. Applicants who are invited to participate in the Proof of Concept Stage will be required to agree to new proposed activities, timeframes and Funding amounts with the Challenge Owner.
  6. Following the Feasibility Stage, the Challenge Owner may in its sole discretion decide to immediately further develop or acquire the Developed Solution instead of proceeding to the Proof of Concept Stage. If so, it is contemplated that the Challenge Owner and the Applicant will negotiate in good faith to enter into a formal agreement for the further development or acquisition of the Developed Solution for a fair market price, having regard to the financial support given to the Applicant during the Feasibility Stage.

Proof of Concept Stage Period

  1. The Terms relating to the Proof of Concept Stage do not come into effect until the Schedule 2 Proposal Activities and Funding for the Proof of Concept Stage is agreed between the Applicant and the Challenge Owner. Agreement is effected by exchange of signed counterparts of the Schedule 2 between the Applicant and the Challenge Owner. Upon agreement of the Schedule 2 Proposal Activities and Funding, the Schedule 2 binds the Applicant and the Challenge Owner in conjunction with these Terms.   
  2. Where an Applicant is an organisation, the authorised individual representing that organisation must sign the Schedule 2 counterpart in clause 10.1, on behalf of the organisation before the organisation may participate in the Proof of Concept Stage.
  3. The Terms relating to the Proof of Concept Stage commence on the day the Applicant and Challenge Owner agree the Schedule 2 Proposal Activities and Funding, and expire fourteen (14) months after that date.
  4. The Applicant must complete the Proof of Concept Stage within the timeframes set out in the agreed Schedule 2 for the Proof of Concept Stage, or as otherwise agreed to by the Challenge Owner in writing.
  5. For clarity, DSITI agrees to the Schedule 2 agreed between the Applicant and Challenge Owner in accordance with this clause 10, and to the extent necessary authorises the Challenge Owner to agree on DSITI’s behalf.

Proof of Concept Stage

  1. During the Proof of Concept Stage, the Applicant will be required to work with the Challenge Owner to develop a working preliminary pilot or prototype of the Proposed Solution, in accordance with the timeframe set out in the agreed Schedule 2.
  2. The Applicant must attend the following sessions:
    1. proof of concept kick off meeting;
    2. at a minimum, monthly meetings with the Challenge Owner, either in-person or by telephone/online, as directed by the Challenge Owner; and
    3. periodic solution demonstration days, in accordance with the agreed Schedule 2.
  3. The Applicant must:
    1. participate in the Proof of Concept Stage substantially in accordance with the timing and activities outlined in the agreed Schedule 2, or as otherwise agreed to by the Challenge Owner in writing;
    2. submit a correctly rendered invoice, within ten (10) business days of the dates outlined in the agreed Schedule 2;
    3. submit to the Challenge Owner a progress Report and final Report outlining the information listed in Schedule 3, within ten (10) business days of the dates outlined in the agreed Schedule 2;
    4. exercise due care and skill in carrying out activities associated with the Proof of Concept Stage; and
    5. take all reasonable steps to minimise delay in completing the Proof of Concept Stage.
  4. The Challenge Owner undertakes to, within the best of its ability, provide information requested by the Applicant, within a reasonable period of time, to allow the Applicant to undertake the activities associated with the Proof of Concept Stage.

Process following the Proof of Concept Stage

  1. Following the Proof of Concept Stage, the outcomes will be assessed by the Challenge Owner. The outcomes of the Proof of Concept Stage may also be independently assessed.
  2. Following the Proof of Concept Stage and assessment, the Challenge Owner may in its sole discretion decide to further develop or acquire the Developed Solution. If so, it is contemplated that the Challenge Owner and the Applicant will negotiate in good faith and enter into a formal agreement for the further development or acquisition of the Developed Solution for a fair market price, having regard to the financial support given to the Applicant during the Feasibility Stage and Proof of Concept Stage, as applicable, under the SBIR Initiative.

Payment, Records, and Audit

  1. Subject to the Applicant complying with these Terms and submitting correctly rendered invoice/s and report/s in accordance with clause 8.3 and 11.3, the Challenge Owner will contribute Funding towards the development of the Proposed Solution:
    1. during the Feasibility Stage, in accordance with the amounts and timing as outlined in the  agreed Schedule 1, or as otherwise agreed to by the Challenge Owner in writing; and
    2. during the Proof of Concept Stage, in accordance with the amounts and timing as outlined in the  agreed Schedule 2, or as otherwise agreed to by the Challenge Owner in writing.
  2. The Applicant must only use the Funding for the development of the Proposed Solution and consistently with these Terms.
  3. The Challenge Owner may, by notice, withhold payment of any amount where they reasonably believe the Applicant has not complied with the Terms or is unable to undertake its obligations under the Terms.
  4. A notice under clause 13.3 will contain the reasons for any payment being withheld and the steps the Applicant can take to address those reasons. The Challenge Owner will pay the withheld amount once the Applicant has satisfactorily addressed the reasons contained in a notice under clause 13.3.
  5. The Applicant acknowledges that the Challenge Owner is not under any obligation to provide any financial support to the Applicant in addition to the Funding for the development of the Proposed Solution or any other activities outlined in the Proposal, unless otherwise agreed to by the Challenge Owner, in its sole discretion.
  6. The Applicant must keep record all expenditure relating to the development of the Proposed Solution, separate from all other income and expenditure of the Applicant.
  7. The Applicant must keep proper and adequate records, accounts and supporting documents in accordance with generally accepted accounting principles and as required by law, about the participation in the SBIR Initiative and development of the Proposed Solution.
  8. Upon request, the Applicant must provide a financial statement detailing the receipt and expenditure of Funding to date, including a declaration from the Applicant’s chief executive officer stating that the Funding has been used solely for the development of the Proposed Solution.
  9. DSITI and the Challenge Owner each reserve the right, upon reasonable notice and during business hours, to conduct a financial audit of the Applicant in relation to the SBIR Initiative. The Applicant must provide access and reasonable assistance to DSITI or Challenge Owner (including their employees and nominated auditors) to:
    1. speak to persons associated with participation in the SBIR Initiative;
    2. examine, inspect and copy any material or records in the possession of the Applicant, relevant to the participation in the SBIR Initiative or to the receipt, expenditure or payment of Funding;
  10. When accessing premises or records in accordance with this clause 13, DSITI or Challenge Owner will use its best endeavours to minimise interference to the Applicant and its participation in the SBIR Initiative.
  11. If any amount of Funding is not used for developing the Proposed Solution or not used or spent in accordance with these Terms, then:
    1. the Challenge Owner may by written notice, require the Applicant to refund the misapplied Funding to the Challenge Owner within fourteen (14) days of receipt of the notice; and
    2. if the Applicant does not refund the misapplied Funding within that time period, the Challenge Owner may recover that amount as a liquidated debt due to it.   

GST

  1. Unless otherwise stated, all amounts payable are exclusive of GST.
  2. A party to these Terms need not make a payment for a taxable supply until it receives a tax invoice (or adjustment note) for that supply.
  3. The parties to these Terms agree to use all reasonable endeavours to assist each other in meeting their lawful obligations under the GST law.

Provision of misleading information

  1. Applicants warrant that they will not provide incorrect, misleading or fraudulent information to DSITI or the Challenge Owner during the SBIR Initiative.
  2. If DSITI or the Challenge Owner believe, at their sole discretion, that the Applicant has breached clause 15.1 at any time, the Applicant’s participation in the SBIR Initiative may be terminated immediately by written notice from DSITI or from the Challenge Owner and the Applicant removed from the SBIR Initiative.

Use of material provided by DSITI or the Challenge Owner

  1. Any material or information provided to Applicants by DSITI or the Challenge Owner remains the property of DSITI or the Challenge Owner.
  2. The Applicant must not disclose or publish information or data provided to them during the SBIR Initiative to other parties, and must only use such information or data for the purposes of the SBIR Initiative.
  3. The Applicant must cease to use and destroy any records of information or material supplied to them by DSITI or the Challenge Owner in connection with the SBIR Initiative at the end of their participation or if otherwise requested to do so by DSITI or the Challenge Owner.
  4. DSITI and the Challenge Owner reserve the right to require Applicants to sign, in a form acceptable to DSITI and the Challenge Owner, a licensing agreement governing their use of DSITI’s or the Challenge Owner’s information, and any other documents that are required as are necessary for DSITI or the Challenge Owner to adequately protect their rights.
  5. An Applicant is not entitled to claim compensation or loss from DSITI or the Challenge Owner for any losses, damages or expenses, or an extension of time to participate in the SBIR Initiative or submit a Proposal, on the grounds that insufficient, incorrect, unintentionally misleading or ambiguous information was given by DSITI or the Challenge Owner. The Applicant is responsible for undertaking its own checking and due diligence as to the accuracy or reliability of any information provided by DSITI or the Challenge Owner.
  6. If DSITI or the Challenge Owner believe, at their sole discretion, that the Applicant has breached clause 16.2 at any time, or refuses to comply with a request made under clause 16.4, the Applicant’s participation in the SBIR Initiative may be terminated immediately by written notice from DSITI or the Challenge Owner and the Applicant removed from the SBIR Initiative.

Intellectual property rights

  1. Each party retains all its Intellectual Property Rights in its Existing Material.
  2. All New Material, and Intellectual Property Rights in that New Material, created by an Applicant as part of the SBIR Initiative is owned by the Applicant.
  3. All New Material, and Intellectual Property Rights in that New Material, created by the Challenge Owner or DSITI as part of the SBIR Initiative is owned by the party who created that New Material.
  4. The Applicant will own the Intellectual Property Rights in any modifications, developments and enhancements (“Improvements”) made by the Applicant to the Existing Material.
  5. The Applicant:
    1. warrants that the New Material it creates, and the Applicant’s Existing Material which has been incorporated into that New Material, does not infringe the Intellectual Property Rights or Moral Rights of any other person;
    2. grants DSITI and the Challenge Owner an irrevocable, perpetual, non-exclusive, royalty free, worldwide, transferable licence (including right of sublicense) to use, adapt, reproduce, publish, exploit and otherwise exercise all rights comprised in the copyright in relation to the Applicant’s New Material, including any of the Applicant’s Existing Material which has been incorporated into the New Material, any Improvements, and the Applicant’s information submitted under the SBIR Initiative, for the purpose of:
      1. evaluating Proposals;
      2. administering the SBIR Initiative;
      3.  marketing, advertising and promotional activities related to the SBIR Initiative, including the publication of media releases and case studies; and
      4. any action contemplated by clause 19 or clause 24 of these Terms;
    3. warrants that it is authorised to grant the rights in clause 17.5(b); and
    4. indemnifies DSITI and the Challenge Owner from any liability arising from a breach by them of any person’s Intellectual Property Rights or Moral Rights arising from their use of the Applicant’s New Material and Existing Material (but not Improvements) in accordance with clause 17.5(b).
  6. If requested by DSITI or the Challenge Owner, the Applicant must procure from all of the Applicant’s personnel involved in the creation of the Applicant’s New Material, a Moral Rights consent substantially in the form approved by DSITI or the Challenge Owner, as applicable.  The Applicant must, upon request, provide a copy of each Moral Rights consent procured by the Applicant.

Confidentiality

  1. Applicants must not:
    1. disclose Confidential Information to a third party other than as required by law or with the consent of the person who owns the Confidential Information; or
    2. make any attempt to observe or access the proposal, solutions or ideas of other Applicants. 
  2. Applicants must immediately report to DSITI or the Challenge Owner any breach of this clause 18 or any inadvertent access that they obtain to the proposal, solutions or ideas of other Applicants.
  3. DSITI and the Challenge Owner reserve the right to require Applicants to sign a deed of confidentiality. 
  4. If DSITI or the Challenge Owner believe, at their sole discretion, that the Applicant has breached clause 18.1 at any time, or refuses to comply with a request made under clause 18.3, the Applicant’s participation in the SBIR Initiative may be terminated immediately by written notice from DSITI or the Challenge Owner and the Applicant removed from the SBIR Initiative.

Marketing

  1. DSITI or the Challenge Owner may publish marketing and advertising information about the SBIR Initiative on the internet, in brochures or in other forms. 
  2. The Applicant agrees that DSITI or the Challenge Owner may, without limitation, publish:
    1. details about the Applicant’s participation in the SBIR Initiative;
    2. information that identifies Applicant Partners or companies; and
    3. details of the Proposals (excluding trade secrets notified by the Applicant in writing).
  3. The Applicant (including its officers and employees) also agree to DSITI or the Challenge Owner using its name, likeness, image and photograph for publicity and promotional purposes for an unlimited period of time, without further notification or compensation. DSITI will own the copyright in any video, images and photographs of Applicants created or taken by DSITI and in all material incorporating the video, image or photograph.
  4. The Applicant agrees to use reasonable endeavours to make its officers and employees available for, and to ensure they participate in, any SBIR Initiative publicity and marketing events and opportunities notified by DSITI or the Challenge Owner.
  5. The Applicant must ensure its proposed media, publicity and marketing events and opportunities are notified to DSITI and the Challenge Owner, and DSITI and the Challenge Owner given the opportunity to participate or otherwise contribute to those events and opportunities.

Limitation of liability

  1. To the extent permitted by law, DSITI excludes all guarantees, warranties, conditions or other terms that apply under or are implied by statute, common law or trade custom or usage. 
  2. To the extent permitted by law, neither DSITI nor the Challenge Owner will be liable to any person, including Applicants, for any injury, damages, expenses or loss whatsoever (including without limitation loss of profit, revenue or business and indirect, consequential, special or incidental loss or damage), sustained in the course of participating in the SBIR Initiative.
  3. Each Applicant releases, discharges, indemnifies and will keep indemnified DSITI and the Challenge Owner from and against any Claim that may be made or brought by any person against them in connection with:
    1. the Applicant failing to observe or perform any of its obligations under these Terms;
    2. any negligent or unlawful act or omission of the Applicant or its employees; and
    3. contravention of any legislative requirement by the Applicant or its employees; and
    4. infringement by the Applicant or its employees of the Intellectual Property Rights or Moral Rights of any person.
  4. In this clause, Claim means any action, proceeding, claim and demand, including all costs, damages and expenses (including legal fees) reasonably incurred in defending any action, proceedings, claim or demand.

Termination for default

  1. DSITI or the Challenge Owner may terminate the Applicant’s participation in the SBIR Initiative immediately by notice where they believe that the Applicant:
    1. has breached a warranty in clause 2.5 or has breached clause 15.1, 16.2, 18.1  or 25;
    2. refuses to, or is unable to, comply with a request made under clauses 16.4 or 18.3;
    3. has breached any other clause of these Terms, and DSITI or the Challenge Owner reasonably consider such breach as not capable of remedy;
    4. has become ineligible under the SBIR Initiative;
    5. has withdrawn from the SBIR Initiative;
    6. has become bankrupt or insolvent, entered into a scheme of arrangement with creditors, or come under any form of external administration.
  2. For a breach that DSITI or the Challenge Owner reasonably consider as capable of remedy, DSITI or the Challenge Owner may terminate the Applicant’s participation in the SBIR Initiative immediately by notice, where the Applicant has failed to remedy the breach within ten (10) business days of receiving a notice outlining the breach.

Cancellation of the SBIR Initiative

  1. DSITI or the Challenge Owner may cancel the SBIR Initiative and/or terminate the Applicant’s participation in the SBIR Initiative at any time, by ten (10) business days’ notice, for any reason.
  2. The Applicant agrees on receipt of a notice of termination under clause 22.1, to stop the performance of their obligations as specified in the notice, and take all available steps to minimise loss resulting from that termination.
  3. In the event of termination under clause 22.1, the Challenge Owner will be liable to pay only the reasonable costs (if any) that have been or will be incurred by the Applicant as a direct result of the termination of their participation in the SBIR Initiative, that can be substantiated to the reasonable satisfaction of DSITI or the Challenge Owner, and which the Applicant cannot recoup or avoid and which would not otherwise have been incurred by the Applicant if the participation in the SBIR Initiative had continued until their expiry.
  4. The Challenge Owner’s liability to pay any amount under this clause 22 is subject to the Applicant’s compliance with the Terms. If termination under this clause occurs prior to the Feasibility Stage, the Challenge Owner (and DSITI) will not be liable to the Applicant for any loss or damage suffered by the Applicant as a result of the termination.
  5. Any amount payable by the Challenge Owner under this clause will not exceed the total amount of the Funding.
  6. In the event of termination under clause 22.1 or under any clause other than this clause 22, DSITI will not be liable to the Applicant for any loss or damage suffered by the Applicant as a result of the termination.

Acknowledgement of Support

  1. The Applicant must, in making any Formal Public Statement about the Proposal or Proposed Solution:
    1. include an acknowledgement of the conduct and support of the SBIR Initiative by DSITI and the Challenge Owner; and
    2. comply with any requirements as notified to the Applicant by DSITI and the Challenge Owner.

Privacy

  1. DSITI and the Challenge Owner are bound by the Information Privacy Act 2009 (Qld) in relation to Personal Information.
  2. The Applicant acknowledges, agrees and expressly consents that DSITI and the Challenge Owner may collect, use and disclose the Applicant’s Personal Information to:
    1. Contractors;
    2. Other government agencies;
    3. Other third parties (for example, external assessors or probity advisors); or
    4. the public in advertising, marketing and publicity material;
  3. for the purpose of administering the SBIR Initiative, and/or otherwise as expressly permitted in accordance with these Terms.
  4. The Applicant will ensure that its employees provide express consent to the collection, use and disclosure of their Personal Information as contemplated in this clause 24.
  5. Upon request by DSITI or the Challenge Owner, the Applicant must promptly provide copies of the express consents obtained pursuant to clause 24.3.
  6. DSITI and the Challenge Owner will not otherwise disclose the Applicant’s Personal Information to a third party, unless authorised or required by law or by the Information Privacy Act 2009.
  7. To the extent the Applicant deals with the Personal Information of other parties or persons in participating in the SBIR Initiative, the Applicant agrees to comply with Chapter 2 Parts 1 and 3 of the Information Privacy Act 2009.

Commissions and Incentives

  1. An Applicant must not, and must ensure that its officers, employees and agents do not, give or offer anything to DSITI or the Challenge Owner or any of their officers or employees, or to a parent, spouse, child or associate of their officers or employees, including any commission, inducement, gift or reward, which could in any way tend or be perceived as attempting to, influence DSITI or the Challenge Owner’s actions in relation to the SBIR Initiative.
  2. If DSITI or the Challenge Owner believe at their sole discretion, that the Applicant has breached clause 25.1 at any time, the Applicant’s participation in the SBIR Initiative may be terminated immediately by written notice from DSITI or the Challenge Owner and the Applicant removed from the SBIR Initiative.

Anti-competitive conduct and conflict of interest

  1. Each Applicant warrants that:
    1. any material, Proposal or solution that it prepares during the SBIR Initiative is not prepared with any consultation, communication, contract, arrangement or understanding with any competitor (including any other Applicant) regarding:
      1. prices;
      2. the quality, quantity, specifications or delivery particulars of goods and/or services; or
      3. the terms of its Proposal or a competitor’s Proposal;
    2. it has not and will not during the SBIR Initiative:
      1. provide any benefit directly or indirectly to, or enter into any contract, arrangement or understanding to provide any benefit directly or indirectly to any competitor (including any other Applicant) relating in any way to the SBIR Initiative; or
      2. receive any benefit directly or indirectly from, or entered into any contract, arrangement or understanding to receive any such benefit directly or indirectly from any competitor (including any other Applicant) relating in any way to the SBIR Initiative.
  2. Clause 26.1 does not apply to the extent that Applicants:
    1. participate in the SBIR Initiative as part of a group; or
    2. engage in collaboration or exchange of ideas with other Applicants as part of the SBIR Initiative.
  3. The Applicant warrants that:
    1. it and its personnel or representatives do not hold any office or possess any property, are not engaged in any business or activity and do not have any obligations whereby a Conflict of Interest is created, or may appear to be created, in conflict with its obligations under these Terms, except as previously disclosed to DSITI and the Challenge Owner;
    2. it will not, and will ensure that its personnel and representatives do not, place themselves in a position that may give rise to a Conflict of Interest between the interests of DSITI and the Challenge Owner and the interests of the Applicant during the SBIR Initiative; and
    3. it will immediately notify DSITI and the Challenge Owner of any Conflict of Interest that arises during any stage of its participation in the SBIR Initiative.
  4. If DSITI and the Challenge Owner believe, at their sole discretion, that the Applicant has breached the warranties in clause 26 at any time, the Applicant’s participation in the SBIR Initiative may be terminated immediately by written notice from DSITI and the Applicant removed from the SBIR Initiative.

Right to information and disclosure

  1. The Right to Information Act 2009 (Qld) (RTI Act) provides members of the public with a legally enforceable right to access documents held by Queensland Government agencies.
  2. The RTI Act requires that documents be disclosed upon request, unless they are exempt or on balance, disclosure is contrary to the public interest.
  3. Information contained in any material provided by Applicants to DSITI or the Challenge Owner is potentially subject to disclosure to third parties.
  4. If disclosure under the RTI Act or general disclosure of such material, in whole or in part, would be of concern to an Applicant, because it would disclose trade secrets, information of commercial value, the purpose or results of research or other information of a confidential nature, this should be indicated at the time the material is provided. However, DSITI and the Challenge Owner cannot guarantee that any information provided by an Applicant, including information that is identified by the Applicant as being confidential, will be protected from disclosure under the RTI Act.

Procurement policies and the ICT SME Participation Scheme

  1. Applicants acknowledge that the SBIR Initiative and individual Challenges released through the SBIR Initiative are subject to existing Queensland Government procurement policies. 
  2. Applicants acknowledge that some Challenges may be subject to the requirements of the ICT SME Participation Scheme. If the ICT SME Participation Scheme does apply, DSITI will advise Applicants of this in the published Challenge or through updates.
  3. If the ICT SME Participation Scheme applies to a SBIR Challenge and a particular Applicant, then that Applicant must:
    1. comply with all reporting requirements outlined in the ICT SME Participation Scheme;
    2. comply with the ICT SME Participation Level outlined in Schedule 1 and/or Schedule 2; and
    3. when submitting the report required by Schedule 3, provide documentary evidence of compliance with the contracted ICT SME Participation Level as outlined in Schedule 1 and/or Schedule 2.
  4. If the documentary evidence provided by the Applicant in relation to their ICT SME Participation Levels reveals that the Applicant has failed to meet the ICT SME Participation Level included in Schedule 1, the Challenge Owner may withhold Funding or terminate the Applicant’s participation in the Feasibility Stage or Proof of Concept Stage of the SBIR Initiative.  
  5. The Applicant will be required to keep and provide the Challenge Owner with access to the Applicant’s financial or other records relating to payments made to SMEs nominated in Schedule 1 and proof of payment relating to such payments.    
  6. Applicants acknowledge that it is their responsibility to obtain necessary information about this scheme prior to submitting their Proposal.  Information on the scheme can be found at:     https://www.business.qld.gov.au/industries/science-it-creative/ict/tendering-government/sme-participation

Insurance

  1. The Applicant acknowledges and agrees that if successful in proceeding to the Feasibility Stage and/or the Proof of Concept Stage, it will hold and maintain the following insurances:
    1. Public liability insurance in the amount of $10 million per claim; and
    2. Workers’ compensation insurance as required under legislation.
  2. The Applicant agrees to provide a copy of the certificates of insurance to the Challenge Owner:
    1. within ten (10) business days of receiving an offer to participate in the Feasibility Stage or Proof of Concept Stage (whichever occurs earlier); and
    2. upon request by the Challenge Owner.

Miscellaneous

  1. Applicants are responsible for obtaining their own independent legal and financial advice regarding these Terms and their participation in the SBIR Initiative.
  2. The Applicant may not assign or subcontract any of the benefits or obligations under these Terms without DSITI and the Challenge Owner’s prior written consent. For the avoidance of doubt, an assignment under this clause includes but is not limited to a change in the ultimate or beneficial ownership of the Applicant, such that the assignment results in a change in control of the Applicant.
  3. These Terms may only be varied in writing by authorised representatives of DSITI, the Challenge Owner and the Applicant. Schedules may be agreed and varied in accordance with clauses 7 and 10.  
  4. These Terms are governed by and construed in accordance with the laws of Queensland.
  5. A reference to DSITI, the Challenge Owner, and any other government department, entity, authority, association, or body, whether statutory or otherwise (‘Government Entity’) will in the event of any such Government Entity ceasing to exist or being reconstituted, renamed or replaced or the powers or functions of the Government Entity being transferred to any other department, entity, authority, association or body, be deemed to refer respectively to the Government Entity established, constituted or succeeding, or as nearly as may be, to the powers or functions of the Government Entity.
  6. Clauses 6, 14, 16, 17, 18, 19, 20, 22, 23, 24, 27 , 30.6, and 33 will survive termination or expiry of these Terms for any reason.
  7. The Schedule 1 and Schedule 2 may be validly agreed by exchange of signed counterparts of the relevant Schedule between the Applicant and the Challenge Owner. In addition to any other valid method, signed counterparts may be exchanged by successful electronic transmission.

Participation Period

  1. These Terms commence in relation to an Applicant’s participation in the SBIR Initiative, upon the Applicant’s signing of the acknowledgement agreeing to be bound by the Terms, or otherwise expressly agreeing to be bound by the Terms in a way permitted by DSITI and the Challenge Owner.  The Terms continue to apply to the Applicant’s participation in the SBIR Initiative, unless otherwise terminated or expired, until the completion or merger of all rights and obligations in relation to the participation in the SBIR Initiative. 

Ethical Codes of Practice

  1. If the Applicant undertakes research for the purposes of the SBIR Initiative, the Applicant must:
    1. undertake the research in accordance with all applicable Australian and/or Queensland research guidelines, ethical codes of practice and ethical committees; and
    2. not undertake any activity with any party that, to the Applicant’s knowledge, does not comply with the guidelines and codes of practice referred to in clause 32.1(a).
  2. The Challenge Owner and DSITI each reserve the right to require the Applicant to promptly furnish a written certification of compliance with the requirements of this clause.
  3. If the Challenge Owner or DSITI believes, in its sole discretion, that the Applicant has breached clause 32.1 at any time, or is unable to comply with a request made under clause 32.2, the Applicant’s participation in the SBIR Initiative may be terminated immediately by written notice from the Challenge Owner or DSITI.

Interpretation

  1. The following definitions apply in these Terms:
    • Applicant means the entity participating in the SBIR Initiative to solve a Challenge, and includes the entity’s employees, contractors and agents.
    • Challenge means the relevant issue or problem described on the Website, submitted by the Challenge Owner to be solved through the SBIR Initiative.
    • Challenge Owner means the entity that has submitted the Challenge to be solved through the SBIR Initiative, and includes its employees, contractors and agents.
    • Confidential Information means information of, or supplied by, DSITI, the Challenge Owner or an Applicant that is by its nature confidential, is designated as confidential or the recipient knows or ought to know is confidential and includes information:
      1. about an Applicant’s Proposal;
      2. comprised in or relating to any Intellectual Property Rights of DSITI, the Challenge Owner or an Applicant;
      3. concerning the internal management and structure, personnel, processes and policies, commercial operations, financial arrangements or affairs of DSITI, the Challenge Owner or an Applicant;
      4. that is of actual or potential commercial value to DSITI, the Challenge Owner or an Applicant;
      5. relating to clients or suppliers of DSITI, the Challenge Owner or an Applicant,

      but does not include information that:

      1. was already in the possession of the recipient and not subject to an obligation of confidentiality;
      2. is lawfully received from a third party or independently developed by a recipient; or
      3. is public knowledge other than through a breach of an obligation of confidentiality.
    • Conflict of Interest includes any actual, reasonably anticipated or perceived conflict of interest, whether personal, financial, professional or otherwise.
    • Developed Solution means the final outcome or solution to a Challenge that has been developed through the stages of the SBIR Initiative.
    • DSITI means the State of Queensland acting through the Department of Science, Information Technology and Innovation, and includes its employees, contractors and agents.
    • Existing Material means all things, materials, documents, information and items which existed at the commencement date of these Terms or which are developed independently of the party’s participation in the SBIR Initiative.
    • Feasibility Stage means the stage of the SBIR Initiative, as outlined in clause 1.5, to determine the feasibility of the Proposal and to be completed within the timeframes as agreed to by the Challenge Owner and the Applicant.
    • Funding means the amount the Challenge Owner has agreed to contribute towards the development of the Proposed Solution under the relevant Stage as outlined in Schedule 1 and Schedule 2 to these Terms.
    • Formal Public Statement means any formal statement or address by the Applicant or on the Applicant’s behalf in relation to the Proposal which is intended for the public domain including media releases, discussions with television or newspaper journalists, presentations at conferences; promotional and advertising material and any recording or publication resulting from the Proposal (including without limitation, reprints) which is intended to be distributed into the public domain.
    • ICT SME Participation Level means the level of SME participation that the Applicant is retaining in delivering the Proposal, in accordance with the ICT SME Participation Scheme.      
    • ICT SME Participation Scheme means the ICT SME Participation Scheme.
    • Intellectual Property Rights includes all copyright, trade mark, design, patents or other proprietary rights, or any rights to registration of such rights existing in Australia, or elsewhere or as protected by legislation from time to time, whether created before, on or after the commencement of the SBIR Initiative, but excludes Moral Rights.
    • Moral Rights means the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship falsely attributed, more particularly as conferred by the Copyright Act 1968 (Cth), and rights of a similar nature anywhere in the world whether existing before, on or after the commencement of the SBIR Initiative.
    • New Material means all things, material, documents, information and items that are created, written, developed or otherwise brought into existence by or on behalf of, a party in the course of its participation in the SBIR Initiative.
    • Partners means other entities assisting the Applicant with participation in the SBIR Initiative.
    • Personal Information means information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
    • Proof of Concept Stage means the stage of the SBIR Initiative, to develop, prototype and pilot the Proposal, and to be completed within the timeframes as agreed to by the Challenge Owner and the Applicant.
    • Proposal means the proposal submitted by the Applicant included in their application as part of the SBIR Initiative, outlining the Proposed Solution to the Challenge.
    • Proposed Solution means the innovative solution to a Challenge outlined in the Applicant’s Proposal.
      Report means a progress or final report for the relevant Stage, the required content of which is set out in Schedule 3.
    • SBIR Initiative means the Small Business Innovation Research Initiative being conducted by DSITI as a means of solving Challenges through the development of Proposed Solutions by Applicants.
    • Solution Presentation Day means the event that the Applicant will attend to present their Proposal to the Challenge Owner, DSITI and an evaluation panel appointed by the Challenge Owner.
    • Terms mean these Terms of participation, which the Applicant must agree to and comply with in order to participate in the SBIR Initiative.
    • Website means the website on which the SBIR Initiative is hosted and details of Challenges are described.
  2. In these Terms:
    1. words importing a gender include any other gender and words in the singular include the plural and vice versa;
    2. a reference to legislation includes subordinate legislation made under it and any legislation amending, consolidating or replacing it;
    3. a reference to an individual or person includes a corporation or other legal entity;
    4. if an expression is defined, other grammatical forms of that expression will have corresponding meanings;
    5. a reference to a party, includes that party’s successors, executors, administrators and permitted assigns;
    6. a reference to a schedule or annexure means a schedule or annexure to this document; and
    7. an obligation on the part of two or more persons binds them jointly and each of them individually.
Licence
Creative Commons Attribution-NoDerivs 3.0 Australia (CC BY-ND 3.0)
Last updated
26 July, 2017

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