2021 COVID-19 business grant – Terms and Conditions

1. Application and acceptance of Terms and Conditions

1.1. The Department of Customer Service, Service NSW and NSW Treasury are delivering the COVID-19 Business Grant Scheme ('the Scheme'). Under the Scheme, businesses (including Non-employing Businesses) and not-for-profit organisations (including Registered Charities), impacted by the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 (“Public Health Order”) in the period from 26 June 2021 to 17 July 2021 can apply for a one-off payment to help meet unavoidable business costs incurred from 1 June to 17 July 2021. These costs may include, but are not limited to, the following:

(a) unavoidable business operating expenses, such as utilities, wages or rent;

(b) the cost of perishable goods that can no longer be used;

(c) financial, legal or other advice to support business continuity planning;

(d) marketing and communications activities to develop the business; and

(e) other activities to support the operation of the business.

1.2. Payments made under the Scheme will be made as act of grace payments under section 5.7(1) of the GSF Act. The conditions in clause 4.1 are conditions that will be imposed by the Minister for Customer Service or his delegate under section 5.7 (2) of the GSF Act on the making of the payment under section 5.7(1) of the GSF Act. If any of the conditions in clause 4.1 are contravened, the payment may be recovered from the recipient by the Crown in a court of competent jurisdiction as a debt due to the Crown pursuant to section 5.7(3) of the GSF Act.

1.3. By applying to receive a payment under the Scheme, businesses and not-for-profit organisations agree to be bound by these Terms and Conditions.

1.4. Certain entities are not eligible for the COVID-19 Business Grant. A full list of Ineligible businesses is listed at Attachment B.

1.5. Additional information about the type of documentation and evidence required to apply for payments under the Scheme is available on the Service NSW website.

2. Definitions and interpretation

2.1. In these Terms and Conditions, unless the context otherwise requires:

2021 COVID-19 JobSaver Scheme means the scheme delivered by DCS, Service NSW and NSW Treasury to support businesses and not-for-profit organisations with payments for the period from 18 July 2021 during the period of the restrictions in the Public Health Order.

ABN means an Australian Business Number.

ACNC means the Australian Charities and Not-for-profits Commission.

Aggregated Annual Turnover means aggregated turnover as defined in s. 328.115 of the Income Tax Assessment Act 1997 (Cth). Aggregated turnover includes the annual turnovers of entities (including foreign entities) that are connected with or affiliates of the business entity.

For Registered Charities when calculating aggregated annual turnover, gifts and Government grants should be included.

For not-for-profit organisations that are not Registered Charities, gifts should be excluded and Government grants included when calculating aggregated annual turnover.

Business means an entity carrying on a business as per the Corporations Act 2001 (Cth) with an ABN.

Commonwealth COVID-19 Disaster Payment means a weekly payment to support a worker who is unable to earn income having lived in, worked from or visited a Commonwealth declared COVID-19 hotspot and is adversely affected by a state public health order, for example, due to a lockdown, hotspot or period of restricted movement of more than 7 days duration.

DCS means the Crown in the right of the State of NSW acting through the Department of Customer Service.

Eligible Expenses are costs that business and not-for-profit organisations incurred in meeting unavoidable business costs from 1 June to 17 July 2021. They include (but are not limited to) the items in clause 1.1(a) to (e) of these Terms and Conditions and the Scheme Guidelines on Service NSW's website.

Employee has the same meaning as its ordinary or common law meaning.

For the purposes of this Program references to an employee include a religious practitioner of a Religious Institution if the religious practitioner meets the following criteria:

• They are not employed by the Religious Institution.
• They are a minister of religion or a full-time member of a religious order and were undertaking activities in pursuit of their vocation as a member of the religious institution as at 13 July 2021.
• They receive from the Religious Institution a payment for undertaking activities in pursuit of their vocation as a religious practitioner and as a member of Religious Institution.
• On 13 July 2021, they were:
  • aged at least 18 (or were 16 or 17, and were independent or not undertaking full-time study); and
  • an Australian resident (within the meaning of section 7 of the Social Security Act 1991), or a resident for income tax purposes and the holder of a special category (Subclass 444) visa.

Employee headcount means the total number of persons employed in New South Wales and who are permanent (full-or part time) or casual staff who have been employed for more than 12 months by the business or not-for-profit organisation as at 13 July 2021.

Employing business means a business entity with employees.

Financial Hardship for the purpose of clause 3.25 means:

For an Employing business that it:

• is at imminent risk of closure;
• is unable to pay for operating expenses such as rent or employee-related expenses; and/or
• will be forced to reduce Employee Headcount.

For a Non-employing Business, a business that is:

• unable to provide themselves, or their immediate family, with a modest standard of living with food, shelter, clothing, medical treatment, and other basic requirements.

Group Employing Entity means an entity with a principal function of supplying employee labour to other members or the group where:

• the circumstances described in paragraphs 8A(1)(a)-(b) of the Coronavirus Economic Response Package (Payments & Benefits) Rules 2020 (Cth) ('JobKeeper Rules') would apply to the entity for the whole of the period within the lockdown that is used for the purpose of assessing decline in turnover, and for the whole of the relevant comparison period; and
• the circumstances described in paragraph 8A(2)(a) of the JobKeeper Rules would also apply to the business if the reference to “a turnover test period during which the test time occurs” were instead a reference to “period within the lockdown”.

GSF Act means the Government Sector Finance Act 2018 (NSW).

GST Act means the A New Tax System (Goods and Services Act) 1999 (Cth).

Hardship Review Panel means the panel with members from Service NSW and NSW Treasury and chaired by the Chief Commissioner of State Revenue, established to assess businesses on a case-by-case basis that do not qualify for Business Grant. The factors considered by the panel are set out in the Guidelines and are available on the Service NSW website.

Highly Impacted Industries means the industries listed in Attachment A.

Ineligible businesses means the businesses listed as “ineligible businesses” in Attachment B.

Ineligible Hardship Review business or not-for-profit organisation means a business or not-for-profit organisation that:

• has an application currently being assessed by Service NSW;
• has already been assessed by Service NSW, and found to be eligible, but is seeking to reapply for a different amount based on changes to eligibility criteria (e.g. changes to the comparison periods);
• has previously applied to Service NSW and wishes to withdraw and re-submit their application based on changes to eligibility criteria (e.g. changes to the comparison periods);
• has previously submitted an application that has been identified by Service NSW as potentially fraudulent or where there are disputes about previous debts owed; and
• is a Non-Employing Business that has received the Commonwealth COVID-19 Disaster Payment for the same period.

Jervis Bay Territory means the Commonwealth Territory of Jervis Bay.

Non-employing business means a business owner who does not have employees. This may include a range of entity types, such as non-employing sole traders or any other businesses without employees.

Not-for-Profit Organisation means an entity whose principal objective is not the generation of profit. A not-for-profit entity can be a single entity or a group of entities comprising the parent entity and each of the entities that it controls.

Payroll means the Australian Tax Office (ATO) concept of total salary, wages and other payments, as declared at W1 in the business’s Business Activity Statement (BAS).

Practitioner means:

• a qualified accountant as defined in the Corporations Act 2001 (Cth)
• a registered tax agent as defined under the Tax Agent Services Act 2009 (Cth); or
• a registered BAS agent as defined under the Tax Services Act 2009 (Cth).

Primary Source of Income means 50 per cent or more of total income.

Public Health Order means the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 (previously named the Public Health (COVID-19 Temporary Movement and Gathering Restrictions and replaced by the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order (No 2) 2021) made pursuant to s. 7 of the Public Health Act 2010 that commenced on 26 June 2021.

Registered Charity means a charity that is registered with the ACNC.

Religious institution means an entity that was:

(a) a Registered Charity, registered under the sub-type “advancing religion” as at 1 June 2021; and

(b) on 1 June 2021 was either:

• a non-profit body that pursued its objectives principally in Australia; or
• a deductible gift recipient (DGR) endorsed, under the Overseas Aid Gift Deductibility Scheme (DGR item 9.1.1) or for developed country relief (DGR item 9.1.2), either as a public fund or for a public fund it operated.

Scheme Guidelines refers to the guidelines for business owners and non-profit organisations making an application under the Scheme available on the Service NSW website.

Service NSW means the Crown in the right of the State of NSW acting through Service NSW.

Southern Border business means a business or not-for-profit organisation located or operating in the following Local Government Areas: Albury, Balranald, Berrigan, Bega Valley, Edward River, Federation, Greater Hume Shire, Hay, Murray River, Murrumbidgee, Snowy Monaro, Snowy Valleys and Wentworth.

Stay at Home Direction (Victoria) means the Direction made by the Victorian Acting Chief Health Officer on 27 May 2021 pursuant to s. 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic).

Terms and Conditions means these Terms and Conditions for participation in the COVID-19 Business Grant Scheme.

Treasury means the Crown in the right of the State of New South Wales acting through NSW Treasury.

Turnover means the GST turnover as defined by the Income Tax Assessment Act 1997 (Cth) and the GST Act, subject to the following modifications:

• section 188-15 of the GST Act applies as if a reference to a month is a reference to a fortnight;
• subsection 188-15(1) of the GST Act is to be applied at the end of the fortnight;
• subsection 188-15(1) of the GST Act has effect as if the reference in that subsection to “, or are likely to make, during the 12 months ending at the end of that month,” were instead a reference to “during that fortnight”;
• subsection 188-15(2) of the GST Act (about members of GST groups) is to be disregarded;
• each external Territory is treated as forming part of the indirect tax zone (within the meaning of the GST Act).
• Modifications – Registered Charities: In calculating current GST turnover:

(a) for an entity that is a deductible gift recipient or a Registered Charity – each gift received by the entity in the period (other than from an associate) results in the following treatment:

i. the entity is treated as making a supply in the period for consideration; and

ii. the value (within the meaning of the GST Act) of the supply is treated as being equal to the amount of the gift (if the gift is money) or the market value of the gift (if the gift is not money).

(b) include, for the avoidance of doubt, any supply made by an entity to which paragraph (a) of this modification applies if consideration for the supply was provided by an Australian government agency, a local governing body, the United Nations, or an agency of the United Nations.

(c) for an entity covered by paragraph (a) – an amount or property received (unless received as consideration for a supply covered by paragraph (b)) by the entity from an Australian government agency, a local governing body, the United Nations, or an agency of the United Nations results in the following treatment:

i. the entity is treated as making a supply in the period for consideration; and

ii. the value (within the meaning of the GST Act) of the supply is treated as being equal to the amount (if money) or the market value of the property (if not money).

2.2. Unless the context requires otherwise, the singular includes the plural and vice versa, reference to a gender includes all genders, reference to 'person' includes a natural person, company, body corporate or other form of legal entity, and reference to 'including' and 'includes' and 'for example' is to read as if followed by 'without limitation'.

2.3. If a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning.

3. Application to receive a payment under the Scheme

Payment details

3.1. A business or not-for-profit organisation can apply for a one-off payment of $7,500 (tier one), $10,500 (tier two) or $15,000 (tier three) via the MyServiceNSW Business Profile within the MyServiceNSW Account. An application may be made by:

(a) an owner of the business or a person authorised to apply on their behalf, or

(b) a person authorised to apply on behalf of a not-for-profit organisation.

3.2. A business or not-for-profit organisation may only apply for one payment of $7,500 (tier one), $10,500 (tier two) or $15,000 (tier three), a business or not for profit organisation may not apply for a payment from more than one tier. A business or not-for-profit organisation may only submit one application for payment under the Scheme.

Eligibility

3.3. A business or not-for-profit organisation may be eligible for a $7,500 (tier one) payment under the Scheme if it:

(a) has an Australian Business Number (ABN) registered in New South Wales, or it can demonstrate it was operating in New South Wales, as at 1 June 2021,

(b) has experienced a decline in turnover of:

i. 30 per cent or more due to the Public Health Order over a minimum two-week period from 26 June 2021 to 17 July 2021 compared to:

• the same period in 2019,
• the same period in 2020, or
• the two-week period immediately prior to the commencement of the Public Health Order.

ii. for a Southern Border business or not-for-profit organisation, 30 per cent or more due to the Public Health Order or the Stay at Home Direction (Victoria) over a minimum two-week period from 27 May 2021 to 17 July 2021 compared to:

• the same period in 2019,
• the same period in 2020, or
• the two-week period immediately prior to the commencement of the Stay at Home Direction (Victoria).

(c) had total annual Australian wages $10 million or less as at 1 July 2020,

(d) had an Aggregated Annual Turnover of between $75,000 and $50 million (inclusive) for the year ended 30 June 2020,

(e) either:

i. for an Employing business: maintains its Employee Headcount while the applicant is receiving payments under this Scheme and JobSaver scheme, or

ii. for a Non-employing business:

• the business is the Primary Source of Income for its owner, and
• no persons associated with the business, and who derive income from it, have received a Commonwealth COVID-19 Disaster Payment between 26 June and 17 July 2021, and

(f) incurred Eligible Expenses due to the Public Health Order or Stay at Home Directions (Victoria), for which there was or is no other government support available.

3.4. A business or not-for-profit organisation may be eligible for a $10,500 (tier two) payment if it:

(a) meets the eligibility criteria for the $7,500 (tier one) payment set out in clause 3.3 except for paragraph (b), and

(b) experienced a decline in turnover of:

i. 50 per cent or more due to the Public Health Order over a minimum two-week period from 26 June 2021 to 17 July 2021 compared to:

• the same period in 2019,
• the same period in 2020, or
• the two-week period immediately prior to the commencement of the Public Health Order.

ii. for a Southern Border business or not-for-profit organisation, must have experienced a decline in turnover of 50 per cent or more due to the Public Health Order or the Stay at Home Direction (Victoria) over a minimum two-week period from 27 May 2021 to 17 July 2021 compared to:

• the same period in 2019,
• the same period in 2020, or
• the two-week period immediately prior to the commencement of the Public Health Order.

3.5. A business or not-for-profit organisation may be eligible for a $15,000 (tier three) payment if it:

(a) meets the eligibility criteria for the $7,500 (tier one) payment set out in clause 3.3 except for paragraph (b), and

(b) experienced a decline in turnover of:

i. 70 per cent or more due to the Public Health Order over a minimum two-week period from 26 June 2021 to 17 July 2021 compared to:

• the same period in 2019,
• the same period in 2020, or
• the two-week period immediately prior to the commencement of the Public Health Order.

ii. for a Southern Border business or not-for-profit organisation, must have experienced a decline in turnover of 70 per cent or more due to the Public Health Order or the Stay at Home Direction (Victoria) over a minimum two-week period from 27 May 2021 to 17 July 2021 compared to:

• the same period in 2019,
• the same period in 2020, or
• the two-week period immediately prior to the commencement of the Public Health Order.

Evidence requirements – Highly Impacted Industries

3.6. A business or not-for-profit organisation, operating in one of the Highly Impacted Industries, applying for the $7,500 (tier one), the $10,500 (tier two), or the $15,000 (tier three) payment must:

(a) declare:

i. they experienced the required decline in turnover for the tier 1 payment (clause 3.3(b)(i)), the tier 2 payment (clause 3.4(b)(i)), or the tier 3 payment (clause 3.5(b)), whichever is applicable, or

ii. for a Southern Border business or not-for-profit organisation, they experienced the required decline in turnover for the tier 1 payment (clause 3.3(b)(ii)) or the tier 2 payment (clause 3.4(b)(ii)), whichever is applicable,

(b) declare they have Eligible Expenses for which no other government support is available. They will not be required to provide evidence of costs on application (e.g. invoices) but will need to keep evidence of costs for a possible future audit;

(c) declare:

i. for Employing businesses, that they will maintain their Employee Headcount as at 13 July 2021 for the period for which it receives payments under this Scheme and the JobSaver scheme; or

ii. for Non-employing businesses, declare that the business is the Primary Source of Income for the owner of the business;

(d) provide details of their Practitioner for possible compliance checking;

(e) submit either:

i. an Australian Income Tax Return or other documentation to demonstrate their business had an Aggregated Annual Turnover of between $75,000 and $50 million for the year ended 30 June 2020, however there is no requirement to disclose tax file numbers and businesses should redact their tax file number where possible; or

ii. an Australian Income Tax Return for the last financial year ended prior to 30 June 2020, if they do not have an income tax return for the year ended 30 June 2020 and have a substituted accounting period, however there is no requirement to disclose tax file numbers and businesses should redact their tax file number where possible; and

(f) lodge other supporting documents as required to demonstrate that they meet the eligibility criteria in clause 3.3, clause 3.4, of clause 3.5, whichever is applicable.

Evidence requirements – non-Highly Impacted Industries

3.7. A business or not-for-profit organisation, not operating in one of the Highly Impacted Industries, applying for the $7,500 (tier one), the $10,500 (tier two), or the $15,000 (tier three) payment must:

(a) meet the requirements set out in clause 3.6(b), (c), (e) and (f); and

(b) submit evidence, in accordance with clause 3.8, to demonstrate that they experienced the required decline in turnover for the tier one payment (clause 3.3(b)), the tier two payment (clause 3.4(b)) or the tier three payment (clause 3.5(b)), whichever is applicable.

3.8. The evidence required in clause 3.7 must be:

(a) Either:

i. for a non-employing accounting business a letter from a Practitioner that is not an employee or director of the business, an associated entity of the business, or a director or employee of an associated entity of the business; or

ii. for all other businesses or not-for-profit organisations:

• a letter from a Practitioner declaring that the business or not-for profit organisation experienced the required decline in turnover over the relevant period; or
• if the business has previously submitted a letter to Service NSW from a Practitioner to verify decline in turnover for other COVID-19 business grants, they can resubmit this letter as evidence of the required decline in turnover..

3.9. A business or not-for-profit organisation will not be ineligible for a payment solely because its Employee Headcount reduces due to an employee discontinuing their employment for reasons outside the control of the business or not-for-profit organisation, for example, if the employee voluntarily resigns or retires.

3.10. DCS and/or Service NSW may require a business or not-for-profit organisation with a registered business address outside New South Wales to either:

(a) provide evidence that they were operating in New South Wales as at 1 June 2021 to meet the eligibility criteria in clause 3.3(a). This evidence may include commercial rates notices or lease agreements and any other evidence required under the Scheme Guidelines on Service NSW's website. Where a rates notice or lease agreement is not available, DCS and/or Service NSW may accept one or more of the following documents:

i. utility bills

ii. insurance papers,

iii. supply invoices,

iv. registration papers, or

v. contractor licences;

or

(b) provide evidence that they are and were operating in the Jervis Bay Territory on 1 June 2021 and meet all other relevant eligibility criteria.

3.11. Where a business or not-for-profit organisation operates through a trust structure, they will be required to provide additional information to demonstrate an Aggregated Annual Turnover of between $75,000 and $50 million (inclusive) is derived through the trust, as opposed to a business linked to a trust.

3.12. Where a business or not-for-profit organisation does not submit a BAS to the Australian Tax Office, the business or not-for-profit organisation should contact Service NSW to discuss further.

3.13. A business or not-for-profit organisation that cannot meet the eligibility criteria in clauses 3.3(d) may still be eligible to receive a payment under the Program, if it:

(a) commenced operating on or after 1 July 2019;

(b) has been impacted by acquisition, disposal or restructure that has affected its turnover;

(c) is a sole trader or small partnership impacted by sickness, injury or leave; or

(d) has been affected by drought, bushfire, flood or other natural disasters;

and

(e) had the equivalent of an Aggregated Annual Turnover of between $75,000 and $50 million (inclusive) for the year ended 30 June 2020 and it provides supporting evidence, which must include:

i. a Business Activity Statement for at least one quarter;

ii. an Australian Tax Return, annotated to indicate when the business commenced (however there is no requirement to disclose tax file numbers and businesses should redact their tax file number where possible);

iii. if unable to provide a BAS or Australian Tax Return:

i. a letter from a Practitioner; or

ii. business bank account statements (must be separate from any personal accounts) for a three month period, or if the business has been operating for less than three months, the entire operating period.

3.14. A business or not-for-profit organisation that cannot provide the supporting evidence required by clauses 3.6(e), or 3.11 may still be eligible to receive a payment under the Program, if it:

(a) is a Group Employing Entity; and

(b) provides evidence of the sum of the current GST turnovers of the group members to which it supplied employee labour services during the period within the period of restrictions and the relevant comparison period that are used to calculate decline in turnover.

3.15. Except as set out in clause 3.16, a business or not-for-profit organisation to whom clause 3.13 or 3.14 applies, must comply with all other applicable eligibility and evidence requirements, as set out in clauses 3.3, 3.4, 3.5, 3.6, 3.7, 3.8 and 3.11.

3.16. A business or not-for-profit organisation that has been affected by drought, bushfire, flood or other natural disasters, and to whom clause 3.13 applies, may be eligible for a payment under the Program if it can demonstrate that it has experienced the required decline in turnover for the tier 1 payment (clause 3.3(b)(i)), the tier 2 payment (clause 3.4(b)(i)), or the tier 3 payment (clause 3.5(b)), whichever is applicable due to the Public Health Order over a minimum two week period between 26 June 2021 and 17 July 2021, compared to the same period in 2018.

3.17. Notwithstanding any other provision in these Terms and Conditions, DCS, Revenue NSW and/or Service NSW may require additional information or clarification from a business or not-for-profit organisation or from any other public entity or person, before determining whether the eligibility criteria in clauses 3.3, 3.4, or 3.5, have been satisfied and whether the application should be approved. The additional information can include:

(a) letter from a Practitioner;

(b) Business Activity Statements;

(c) income tax declarations;

(d) audited profit and loss statements; or

(e) receipts and invoices from purchases.

Where a business is unable to provide these documents, or where DCS, Revenue NSW or Service NSW is satisfied it has other suitable methods to determine eligibility, other forms of documentation may be accepted.

Hardship Review

3.18. A business or not-for-profit organisation may be eligible to apply to the Hardship Review Panel, if:

(a) it is experiencing Financial Hardship;

(b) it is not an Ineligible Hardship Review business or not-for-profit organisation; and

(c) either:

i. it does not meet the eligibility criteria in clause 3.3, 3.4 or 3.5, where applicable; or

ii. it has had an application for Business Grant refused.

3.19. A business or not-for-profit organisation applying to the Hardship Review Panel must submit evidence to demonstrate:

(a) that it has not engaged in excessive and non-essential expenditure;

(b) its decline in revenue is due to the impact of the Public Health Order, and not the result of normal business operations; and

(c) it is not practical to rearrange finances or draw upon non-essential assets to continue to operate.

3.20. Notwithstanding any other provision in these Terms and Conditions, the Hardship Review Panel, DCS, Revenue NSW, Treasury NSW and/or Service NSW may determine that a business or not-for-profit organisation is eligible for a payment under the Program. Any such business or not-for-profit organisation that receives a payment under this Program must comply with these Terms and Conditions, except to the extent that any dispensation has expressly been given by DCS and/or Service NSW.

3.21. Information provided by a business or not-for-profit organisation in its application or otherwise in accordance with these Terms and Conditions must be true and correct. It is a serious offence to provide false or misleading information to a public authority.

3.22. A business or not-for-profit organisation is not eligible to apply to receive payment under the Scheme if it has previously received a payment under this Scheme or under a previous program or scheme, and:

(a) Service NSW, DCS and/or NSW Treasury (or another government agency in relation to this Scheme or a previous program or scheme) have sought to recover the whole or part of that previous payment as a debt due to the Crown pursuant to s. 5.7(3) of the GSF Act or otherwise, and

(b) the amount sought has not been repaid.

3.23. A Registered Charity is not eligible to receive a payment under the Program if it is receiving support from:

(a) the NSW Department of Communities and Justice Social Sector Support Fund (SSSF); or

(b) Commonwealth-funded Business Continuity Payments (e.g. in the early childhood education and care sector).

3.24. Notwithstanding any other provision in these Terms and Conditions, DCS and/or Service NSW may refuse to progress an application for any reason, including if the business or not-for-profit organisation does not meet the eligibility criteria in clause 3.3 and, where relevant, clauses 3.4 and 3.5.

3.25. By applying to receive a payment under the Scheme, a business or not-for-profit organisation consents to:

(a) Service NSW, DCS and/or NSW Treasury disclosing personal information provided by the business or not-for-profit organisation to each other for the purposes of administering or reporting on the Scheme, and

(b) Revenue NSW (within DCS) confirming with Service NSW whether or not a business or not-for-profit organisation is registered for payroll tax and whether its total reported wages are $10 million or below as at 1 July 2020.

4. Conditions for payment under the Scheme

4.1 All payments to a business or not-for-profit organisation under the Scheme are made on the condition that:

(a) the business or not-for-profit organisation meets the eligibility criteria in clause 3.3, and, where relevant, in clause 3.4 or 3.5, as modified by clause 3.13 and 3.14 (where applicable),

(b) the application for payment complies with the evidence requirements in clauses 3.1. 3.2, 3.6, 3.7, 3.8, 3.11, 3.13, 3.14 and 3.16 (where applicable),

(c) the business or not-for-profit organisation has consented to Revenue NSW in DCS contacting Service NSW to confirm whether the small business or not-for-profit organisation is registered for payroll tax and whether its total reported wages are below $10 million as at 1 July 2020,

(d) the business or not-for-profit organisation has consented to Service NSW and Revenue NSW disclosing information in relation to your application to other government agencies or third parties to assist with determining eligibility for payments under the Program;

(e) a business or not-for-profit organisation complies with the law at all times, including public health orders and COVID-19 restrictions,

(f) the business or not-for-profit organisation uses the payments to cover Eligible Expenses incurred from 1 June to 17 July 2021;

(g) the business or not-for-profit organisation immediately notifies Service NSW if, due to any actions of the business or not-for-profit organisation, the Employee Headcount declines over the period that payments are received;

(h) the application for payment is made before 11.59pm on 1 October 2021, and

(i) if requested by DCS, Service NSW and/or NSW Treasury, the business or not-for-profit organisation provides evidence of the Eligible Expenses for which a payment is sought under the Scheme.

4.2 A business or not-for-profit organisation must take all reasonable steps to ensure that the conditions in clause 4.1 are or have been satisfied at all relevant times.

4.3 Upon submission of application, a business or not-for-profit organisation declares that:

(a) to the best of its knowledge, the conditions in clause 4.1 are or have been satisfied at all relevant times, and

(b) it took and will take all reasonable steps to ensure that the conditions in clause 4.1 are satisfied.

4.4 Notwithstanding any other provision in these Terms and Conditions, DCS, Service NSW and/or NSW Treasury may take civil and/or criminal action (where appropriate), including referral to NSW Police, where DCS, Service NSW and/or NSW Treasury reasonably suspect that the business or not-for-profit organisation has failed to comply with the law or these Terms and Conditions.

4.5 A business or not-for-profit organisation must notify Service NSW immediately if the business or not-for-profit organisation ceases to trade, can no longer meet the eligibility criteria in clause 3, or can no longer comply with these Terms and Conditions.

4.6 A business or not-for-profit organisation must retain for 5 years all tax invoices, official receipts, bank statements or other records that demonstrate how payments made under the Scheme have been applied by the business or not-for-profit organisation.

4.7 A business or not-for-profit organisation may be audited or investigated by DCS and/or Service NSW to determine whether it is complying with these Terms and Conditions. A business or not-for-profit organisation must provide any information or documentation that is reasonably required for the purpose of any such audit or investigation.

4.8 A business or not-for-profit organisation consents to being contacted by DCS, Service NSW and/or NSW Treasury for a period of 24 months after receiving a payment under the Scheme for the purposes of reporting on and evaluating the Scheme. A business or not-for-profit organisation agrees to provide any information that is reasonably required under this clause.

5. Payments

5.1. Payment made under the Scheme will be credited to a business or not-for-profit organisation’s valid bank account (as identified in its application), where possible, within 10 business days of an approved application.

5.2. Payments made in accordance with this clause will be made as act of grace payments under section 5.7(1) of the GSF Act.

6. Recovery of payments

6.1. If a business or not-for-profit organisation has received a payment under the Scheme and DCS, Service NSW and/or NSW Treasury is satisfied that the conditions in clause 4.1 were, or have been, contravened, the payment or part of the payment may be recovered from the business by the Crown as debt due to the Crown, pursuant to section 5.7(3) of the GSF Act.

7. Suspension or termination of the Scheme

7.1. Notwithstanding any other provision in these Terms and Conditions, NSW Treasury, DCS and/or Service NSW reserve the right to suspend or terminate the entirety or any part of the Scheme at any time.

7.2. Any action taken to suspend or terminate the Scheme will be notified on the Service NSW website.

8. Limitation of Liability

8.1. To the extent permitted by law, DCS, Service NSW and NSW Treasury (including their officers, employees and agents) will not be liable for any direct, indirect, incidental, special or consequential loss or damage or for any death, illness, personal injury, financial loss or property damage however caused (including by negligence) which may be suffered or incurred by a business, organisation or any person arising directly or indirectly out of or in any way connected with the Scheme, including:

(a) any decision to make or refuse to make a payment under the Scheme, including on the basis that funds are unavailable,

(b) the fraudulent application for payments made under the Scheme,

(c) any breach of these Terms and Conditions, and/or

(d) any decision to suspend or terminate the entirety or any part of the Scheme.

9. Indemnity

9.1. A business or not-for-profit organisation agrees to indemnify and keep indemnified DCS, Service NSW and NSW Treasury (including their officers, employees and agents) from and against any liability or loss (including reasonable legal costs and expenses), which may be suffered or incurred by any of those indemnified by reason of or in connection with the business's or not-for-profit organisation’s participation in the Scheme.

10. Contact

10.1. Any enquiry or complaint is to be directed to Service NSW by calling 13 77 88.

11. General

11.1. Businesses and not-for-profit organisations are responsible for obtaining their own independent legal and financial advice regarding these Terms and Conditions.

12. Variation

12.1. DCS, Service NSW and NSW Treasury reserve the right to amend, vary, delete or supplement these Terms and Conditions at any time.

12.2. These Terms and Conditions, as amended, varied, deleted or supplemented from time to time, apply to any future version of, or update to, the IT system that supports the delivery of the Scheme.

13. Waiver

13.1. Failure by DCS, Service NSW and/or NSW Treasury to enforce any of their rights at any stage does not constitute a waiver of those rights.

14. Severability

14.1. If any term in these Terms and Conditions is prohibited, void, voidable, illegal or unenforceable for any reason whatsoever, then that part is severed from these Terms and Conditions but without affecting the continued operation of the remaining Terms and Conditions.

15. Governing Law

15.1. These Terms and Conditions shall be governed by and must be interpreted in accordance with the laws of NSW. A business, not-for-profit organisation, DCS, Service NSW and NSW Treasury submit to the exclusive jurisdiction of the Courts of NSW and any Court competent to hear appeals from those Courts.

16. Survival

16.1. Clauses 6, 8 and 9 contain continuing obligations and will survive termination of these Terms and Conditions.

Attachment A: List of highly impacted industries

Attachment B: Ineligible businesses

A business is not eligible for the 2021 COVID-19 Business Grant if any of the following apply:

• the Major Bank Levy was imposed on the entity or a member of its consolidated group for any quarter before 1 July 2021
• the entity is an Australian government agency (within the meaning of the Income Tax Assessment Act 1997 (Cth))
• the entity is a local governing body
• the entity is wholly owned by an Australian government agency or local governing body
• the entity is a sovereign entity or owned by a sovereign entity
• the entity is a company in liquidation or provisional liquidation
• the entity is an individual who has entered bankruptcy
• the entity has been found to have been engaged in fraud
• the entity primarily earns passive income (rents, interest, or dividends).