1. Application and acceptance of Terms and Conditions
1.1. Service NSW, Revenue NSW and Regional NSW are delivering the Northern Rivers Medium Size Business Grant Program ('the Program’). Under the Program, eligible businesses and not-for-profit organisations can apply for a payment of up to $200,000 to cover clean-up and reinstatement in response to the 2022 Floods.
1.2. Payments made under the Program will be made as act of grace payments under section 5.7(1) of the Government Sector Finance Act 2018 ('GSF Act'). The conditions in clause 7.1 are conditions that will be imposed by the Minister for Customer Service or his delegate on the making of the payment under section 5.7(2) of the GSF Act. If any of the conditions in clause 7.1 are contravened, the payment may be recovered from the recipient by the Crown 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 Program, businesses and not-for-profit organisations agree to be bound by these Terms and Conditions.
1.4. Additional information about the type of documentation and evidence required to apply for payments under the Program is available on the Service NSW website.
2. Definitions and interpretation
2.1. In these Terms and Conditions, unless the context otherwise requires:
2022 Floods means the storm and flood disaster events that occurred in February and March 2022.
ABN means an Australian Business Number.
ACNC means the Australian Charities and Not-for-profits Commission.
Defined Area means the following local government areas: Ballina, Byron, Clarence Valley, Kyogle, Lismore, Richmond Valley, and the Tweed Shire.
Direct Damage means a direct and material impact of the 2022 Floods on business assets or equipment.
Eligible Expenses means costs incurred by the business or not-for-profit organisation for the purpose of re-establishment, retention of operations, clean-up and Reinstatement directly linked with the 2022 Floods and may include the following:
(a) engagement of a tradesperson to conduct a safety inspection of damage to a property, premises, or equipment;
(b) purchasing, hiring or leasing equipment or materials to clean a property, premises, or equipment;
(c) purchasing, hiring or leasing equipment or materials that are essential for immediately resuming operation;
(d) employing a person to clean a property, premises or equipment if:
(i) the cost would not ordinarily have been incurred in the absence of the 2022 Floods; or
(ii) the cost exceeds the costs of employing a person to clean the property, premises or equipment that would ordinarily have been incurred in the absence of the 2022 Floods;
(e) removing and disposing of debris or damaged materials;
(f) removing and disposing of spoiled goods and stock due to power outage;
(g) repairing a building, or repairing or replacing fittings in a building, if the repair or replacement is essential for resuming operations. If the repair or replacement is claimed by a business or not-for-profit organisation that operates from residential premises, funds may only be used for the portion of damage to the building or fixtures that is:
(i) owned by the business or not-for-profit organisation, evidenced by a title search, rates notice and/or certificate of title; and
(ii) used predominantly for business activities, evidenced by financial records, photos, video evidence or a statutory declaration;
(h) replacing lost or damaged stock if the replacement is essential for immediately resuming operation of the business or not-for-profit organisation;
(i) replacing or repair of motor vehicles that have been directly damaged by the 2022 Floods and which are registered for business use and essential for Reinstatement;
(j) leasing temporary premises for the purpose of resuming operation of the business or not-for profit organisation; or
(k) temporarily adopting an online business model.
Evidence of Payment means any of the following:
(a) an invoice including the name, address and ABN (if applicable) of the entity that issued the invoice and a description of each item to which the invoice relates and is clearly identifiable as being related to expenditure on Eligible Expenses.
(b) a receipt including the name and address and ABN (if applicable) of the entity that issued the receipt and a description of each item to which the receipt relates.
(c) a copy of the business or not-for-profit organisation’s bank transfer and/or bank statement.
farm enterprise means a business producing crops, livestock, forestry for the commercial production of products for consumers, or any activity listed in Division A of the Australian New Zealand Standard Industrial Classification 2006 (ANZSIC) 1292.0 (Revision 2.0), published by the Australian Bureau of Statistics.
GSF Act means the Government Sector Finance Act 2018 (NSW).
personal investment vehicle means a product used by investors to gain positive returns. Examples include hedge funds, private real estate investments trusts and venture capital limited partnerships.
Program Guidelines refers to the guidelines for businesses and not-for-profit organisations making an application under the Program available on the Service NSW website.
Reinstatement means the carrying out of activities that are necessary to help the business or not-for-profit organisation continue or resume production at a similar level as before the 2022 Floods.
Regional NSW means the Crown in right of the State of New South Wales acting through the Department of Regional NSW.
Revenue NSW means the Crown in right of the State of New South Wales acting through Revenue NSW within the Department of Customer Service.
Service NSW means the Crown in the right of the State of New South Wales acting through Service NSW.
Terms and Conditions means these Terms and Conditions for participation in the Program.
2.2. Unless the context requires otherwise:
(a) the singular includes the plural and vice versa,
(b) reference to a gender includes all genders,
(c) reference to 'person' includes a natural person, company, body corporate or other form of legal entity,
(d) reference to 'including' and 'includes' and 'for example' is to read as if followed by 'without limitation'; and
(e) 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 Program
3.1. A business or not-for-profit organisation can apply for payments 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. Notwithstanding any other provision in these Terms and Conditions, Service NSW and/or Revenue NSW may refuse to progress an application for any reason, including if the business or not-for-profit organisation does not meet the applicable eligibility criteria in clause 4.
3.3. By applying to receive a payment under the Program in respect of a business or not-for-profit organisation, the applicant:
(a) consents to Service NSW, Revenue NSW, Regional NSW and/or the Commonwealth government, disclosing information, including personal information, provided in the application, to each other for the purposes of administering or reporting on the Program;
(b) declares that it has obtained the consent of any person about whom personal information is provided, to provide that information to Service NSW for the purposes of administering or reporting on the Program; and
(c) consents to Service NSW, Revenue NSW and/or Regional NSW contacting the business or not-for-profit organisation’s insurance company and disclosing information including insurer and policy number to the insurance company, to allow the confirmation or verification of entitlements or the outcome of any claims made in relation to the 2022 Floods.
3.4. 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.
3.5. All applications for a payment under the Program must be made before 11.59pm on closing date specified on the Service NSW website.
4. Eligibility
4.1. Subject to clause 6, a business (other than a not-for-profit organisation) may be eligible for a payment if it:
(a) has an active Australian Business Number (ABN) and held that ABN, as at 22 February 2022;
(b) employed between 21 and 199 full-time equivalent employees (inclusive) as at 22 February 2022;
(c) is structured as a company, joint venture, partnership, or trust;
(d) is located in the Defined Area or is located outside the Defined Area but operates part-time or on some regular basis within the Defined Area; and
(e) has suffered Direct Damage as a result of the 2022 Floods and has provided evidence of that damage;
(f) is responsible for meeting the costs claimed in its application; and
(g) is intending to re-establish the business in the Defined Area.
4.2. Subject to clause 6, a not-for-profit organisation may be eligible for a payment if it:
(a) employed between 21 and 199 full-time equivalent employees (inclusive) as at 22 February 2022;
(b) is either:
i. registered with the ACNC or an equivalent State regulatory body and was registered as at 22 February 2022; or
ii. registered as an incorporated association or co-operative with Fair Trading NSW and was registered on or before 22 February 2022; or
iii. is deemed to be a not-for-profit organisation, in accordance with the current Australian Accounting Standards Board on or before 22 February 2022;
(c) is an entity whose principal objective is not the generation of profit;
(d) is located in the Defined Area or is located outside the Defined Area but operates part-time or on some regular basis within the Defined Area; and
(e) has suffered Direct Damage as a result of the 2022 Floods and has provided evidence of that damage;
(f) is responsible for meeting the costs claimed in its application; and
(g) is intending to re-establish the not-for-profit organisation in the Defined Area.
4.3. A business or not-for-profit organisation is ineligible to receive a payment under the Program if
(a) it has received any of the following grants:
i. $10,000 Small Business Northern Flood Grant;
ii. $50,000 February and March 2022 storm and flood disaster recovery small business grant; or
iii. $75,000 Primary Producer Special Disaster Grant for the February 2022 NSW floods; or
(b) it is:
iv. a body corporate under the Strata Schemes Management Act 1997;
v. a farm enterprise;
vi. a superannuation fund; or
vii. a personal investment vehicle.
4.4. A business or not-for-profit organisation is not eligible to receive payment under the Program if it has previously received a payment under this Program or under a previous program, and:
(a) Service NSW, Revenue NSW and/or Regional NSW (or another government agency in relation to this Program or a previous program) 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.
5. Evidence requirements
5.1. All applicants must provide evidence of the Direct Damage at the time of making an application, and must include:
(a) a list of the Direct Damage; and
(b) photographic evidence of the Direct Damage.
5.2. In circumstances where the Direct Damage is unable to be photographed or other information (such as receipts) is not available, the applicant may provide other appropriate evidence to prove Direct Damage. The appropriateness of this information will be considered by Service NSW, who may require the applicant to provide further information to establish eligibility.
5.3. Any application for a payment greater than $25,000 must include Evidence of Payment at the time the application is made.
5.4. Any applicant may make more than one application for payment, and where the second or subsequent applications means that the total payment applied for exceeds $25,000, Evidence of Payment must be provided for all claims, including the first $25,000 applied for.
Additional information etc.
5.5. Notwithstanding any other provision in these Terms and Conditions, 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 clause 4 (as applicable) have been satisfied and whether the application should be approved.
6. Alternative eligibility and evidence requirements
6.1. Notwithstanding any other provision in these Terms and Conditions, Service NSW or Revenue 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 Service NSW or Revenue NSW.
7. Conditions for payment under the Program
7.1. All payments to a business or not-for-profit organisation under the Program are made on the condition that:
(a) the business or not-for-profit organisation meets the eligibility criteria in clause 4.1 or 4.2 (as modified by clause 6, where applicable), and is not ineligible pursuant to clauses 4.3 or 4.4;
(b) the application for payment complies with the evidence requirements in clause 5;
(c) the information provided by the business or not-for-profit organisation in its application is true and not misleading;
(d) the business or not-for-profit organisation uses the payments to cover Eligible Expenses;
(e) the business or not-for-profit organisation does not use the payment to cover any costs for which the business or not-for-profit organisation has already received a payment under an insurance policy (however, a business or not-for-profit organisation may use a payment received under the Program to cover the gap between costs covered by insurance and actual costs incurred);
(f) the business or not-for-profit organisation does not use the payment to cover any costs for which the business or not-for-profit organisation has received funding or assistance from any other government source or program or donation in relation to the 2022 Floods;
(g) the business or not-for-profit organisation does not use the payment for loss of income as a result of the 2022 Floods;
(h) if requested by Service NSW, Revenue NSW and/or Regional NSW, the business or not-for-profit organisation provides evidence of the Eligible Expenses for which a payment is sought under the Program.
7.2. A business or not-for-profit organisation must take all reasonable steps to ensure that the conditions in clause 7.1 are or have been satisfied at all relevant times.
7.3. Upon submission of application, a business or not-for-profit organisation declares that:
(a) to the best of its knowledge, the conditions in clause 7.1 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 7.1 are satisfied.
7.4. Notwithstanding any other provision in these Terms and Conditions, Service NSW, Revenue NSW and/or Regional NSW may take civil and/or criminal action (where appropriate), including referral to NSW Police, where Service NSW, Revenue NSW and/or Regional NSW reasonably suspect that the business or not-for-profit organisation has failed to comply with the law or these Terms and Conditions.
7.5. 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 applicable eligibility criteria in clause 4, or can no longer comply with these Terms and Conditions.
7.6. A business or not-for-profit organisation must retain all tax invoices, official receipts, bank statements, quotations and other relevant records that demonstrate how payments made under the Program have been applied by the business or not-for-profit organisation for a period of at least 7 years after the payments received have been spent.
7.7. A business or not-for-profit organisation may be audited or investigated by Service NSW, Revenue NSW and/or Regional 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.
7.8. A business or not-for-profit organisation consents to being contacted by Service NSW, Revenue NSW and/or Regional NSW for a period of 24 months after receiving a payment under the Program for the purposes of reporting on and evaluating the Program. A business or not-for-profit organisation agrees to provide any information that is reasonably required under this clause.
8. Payments
8.1. Once an application has been approved, a business or not-for-profit organisation will receive a single payment credited to a valid bank account (as identified in its application). Where possible, the payment will be made within 10 business days of an approved application.
8.2. Payments made in accordance with this clause will be made as act of grace payments under section 5.7(1) of the GSF Act.
9. Recovery of payments
9.1. If a business or not-for-profit organisation has received a payment under the Program and Service NSW, Revenue NSW and/or Regional NSW is satisfied that the conditions in clause 7.1 were, or have been, contravened, the payment or part of the payment may be recovered from the business or not-for-profit organisation (as the case may be) by the Crown as a debt due to the Crown, pursuant to section 5.7(3) of the GSF Act.
10. Suspension or termination of the Program
10.1. Notwithstanding any other provision in these Terms and Conditions, Service NSW, Revenue NSW and/or Regional NSW reserve the right to suspend or terminate the entirety or any part of the Program at any time.
10.2. Any action taken to suspend or terminate the Program will be notified on the Service NSW website.
11. Limitation of Liability
11.1. To the extent permitted by law, Service NSW, Revenue NSW and/or Regional NSW (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 Program, including:
(a) any decision to make or refuse to make a payment under the Program, including on the basis that funds are unavailable,
(b) the fraudulent application for payments made under the Program,
(c) any breach of these Terms and Conditions, and/or
(d) any decision to suspend or terminate the entirety or any part of the Program.
12. Indemnity
12.1. A business or not-for-profit organisation agrees to indemnify and keep indemnified Service NSW, Revenue NSW and/or Regional NSW (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 Program.
13. Contact
13.1. Any enquiry or complaint is to be directed to Service NSW via Service NSW Centres or by calling 13 77 88.
14. General
14.1. Businesses and not-for-profit organisations are responsible for obtaining their own independent legal and financial advice regarding these Terms and Conditions.
15. Variation
15.1. Service NSW, Revenue NSW and/or Regional NSW reserve the right to amend, vary, delete or supplement these Terms and Conditions at any time.
15.2. 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 Program.
16. Waiver
16.1. Failure by Service NSW, Revenue NSW and/or Regional NSW to enforce any of their rights at any stage does not constitute a waiver of those rights.
17. Severability
17.1. 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.
18. Governing Law
18.1. These Terms and Conditions shall be governed by and must be interpreted in accordance with the laws of NSW. A business or not-for-profit organisation that applies for a payment under the Program, Service NSW, Revenue NSW and/or Regional NSW each submit to the exclusive jurisdiction of the Courts of NSW and any Court competent to hear appeals from those Courts.
19. Survival
19.1. Clauses 9, 11 and 12 contain continuing obligations and will survive termination of these Terms and Conditions.