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Terms and Conditions for Business Participation in the Flood Disaster Recovery Small Business Program

1. Application and acceptance of Terms and Conditions

1.1 The Department of Customer Service, Service NSW and Resilience NSW are delivering the Flood Disaster Recovery Small Business Program ('the Program'). As part of the Program, certain small businesses and not-for-profit organisations that have suffered Direct Damage caused by the Floods can apply to receive a payment or payments (up to $50,000 in total) to cover costs including:

1.1.1 engagement of tradesperson to conduct a safety inspection of damage to a property, premises, or equipment;

1.1.2 purchasing, hiring or leasing equipment or materials to clean a property, premises, or equipment;

1.1.3 purchasing, hiring or leasing equipment or materials that are essential for immediately resuming operation of the small business;

1.1.4 employing a person to clean a property, premises or equipment if:

  • the cost would not ordinarily have been incurred in the absence of the eligible disaster; or
  • 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 eligible disaster;

1.1.5 removing and disposing of debris or damaged materials;

1.1.6 removing and disposing of spoiled goods and stock due to power outage;

1.1.7 repairing a building, or repairing or replacing fittings in a building, if the repair or replacement is essential for resuming operation of the small business. If the repair or replacement is for small businesses that is home based, applicants are only permitted to claim the costs for damage to the premises which is directly attributable to the business, not other household damage;

1.1.8 any of the following:

  • replacing lost or damaged stock if the replacement is essential for immediately resuming operation of the small business;
  • leasing temporary premises for the purpose of resuming operation of the small business.

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 5.1 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 5.1 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 Program, you agree to be bound by these Terms and Conditions.

2. Definitions and interpretation

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

'Applicant' means a small business or not-for-profit organisation that applies to receive payment under the Program.

'Defined Disaster Area' means the local government areas listed in the 'Financial year 2020-21' table in respect of AGRN 960 and AGRN 954. The table is available on the NSW Government ‘Natural disaster declarations’ website. A list of local government areas as of 16 July 2021 for AGRN 960 is in Appendix A and a list of local government areas as of 17 June 2021 for AGRN 954 is in Appendix B.

'Direct Damage' means a direct and material impact of the Floods or Flood-mitigation activities on business assets or equipment.

'DCS' means the Department of Customer Service.

'Flood' or 'Floods' means the natural disaster named 'NSW Storms and Floods 10 March 2021 onwards' with the Australian Government Reference Number (AGRN) 960 and the natural disaster named ‘NSW Storms and Floods 19 February 2021 onwards’ with the Australian Government Reference Number (AGRN) 954.

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

'Program' means the program described in clause 1.1 of these Terms and Conditions.

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

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

'Small business' means a sole trader or a business employing fewer than 20 employees but does not include a superannuation fund or a personal investment vehicle.

'Terms and Conditions' means these Terms and Conditions for participation in the Program.

'We' or 'us' means one or more of DCS, Service NSW and/or Resilience NSW (as the case requires).

3. Program guidelines

3.1 More detailed information about the Program is available in the Program Guidelines. The Program Guidelines are published on the Service NSW website.

4. Application to receive a payment under the Program

4.1 A small business or not-for-profit organisation may apply to receive a payment under the Program, if it:

4.1.1 is located in a Defined Disaster Area or is located outside the Defined Disaster Area but operates part-time or on some regular basis within the Defined Disaster Area and the business's or organisation's plant and/or equipment was damaged by the Floods,

4.1.2 has suffered Direct Damage,

4.1.3 is primarily responsible for meeting the costs claimed in the application,

4.1.4 is intending to re-establish the small business or not-for-profit organisation within the same area,

4.1.5 where the Applicant is a small business – holds a current ABN and held that ABN at the time of the Floods, and carried on the small business at the time of the Floods in the Defined Disaster Area,

4.1.6 where the Applicant is a not-for-profit organisation – is registered with the Australian Charities and Not-for-profits Commission (ACNC) or an equivalent state regulatory body and held that registration at the time of the Floods.

4.2 A small business or not-for-profit organisation is not eligible to apply to receive payment under the Program if it:

4.2.1 has received funding or assistance from any other government source or program or donation, where such funding or assistance was provided for the purpose of meeting the same costs being claimed in the application for payment under the Program

4.2.2 is entitled to make a claim under an insurance policy, or has received or is entitled to receive payment under an insurance policy, for the expenses listed in the application

4.2.3 has previously received a payment under this Program or under a previous program or scheme, and:

4.2.3.1 we (or another government agency in relation to this Program 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

4.2.3.2 the amount sought has not been repaid.

4.3 A small business or not-for-profit organisation may not apply, and an application will not be approved, for payment for:

4.3.1 Loss of income caused by the Floods

4.3.2 Repairs to a building that the small business or not-for-profit organisation lets to a person for residential or commercial purposes, unless the business or organisation lets the property in the course of operating the small business or not-for-profit organisation.

4.4 An Applicant must submit its application to receive payment under the Program via its MyServiceNSW Account. The MyServiceNSW Account will ask for two forms of identification with the application to prove the Applicant's identity.

4.5 An application for payment may be made by the owner or a person authorised to apply on behalf of the small business or not-for-profit organisation via their MyServiceNSW Account.

4.6 An Applicant may apply for a single payment of $50,000 or multiple payments up to a total of $50,000.

4.7 An Applicant who operates more than one small business under a single ABN may apply for assistance for each eligible separate business up to the maximum of $50,000.

4.8 All applications must:

4.8.1 nominate the amount claimed;

4.8.2 provide evidence of the Direct Damage (in the form of photos, quotes, tax invoices or receipts); and

4.8.3 provide an itemised list of what you are proposing to spend the payment on – this should include details, including cost, of items you want replaced or repaired and/or proposed clean-up activities to be undertaken. An example of an itemised list is available in the Program Guidelines.

4.9 This clause applies when an Applicant is applying for a single payment of greater than $15,000, or for an additional payment which will bring the total amount the Applicant has claimed to greater than $15,000. An application must include evidence of payment for completed work for the entire amount of funding for which the Applicant is applying (including evidence for the first $15,000 where the Applicant is making an additional application). Evidence of payment means:

4.9.1 an itemised invoice including the name, address and ABN (if applicable) of the entity that issued the invoice. It should be clear from the invoice that it relates to expenses for Direct Damage;

4.9.2 a receipt for payment of the invoice 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; and

4.9.3 copy of the relevant bank transfer and/or bank statement.

4.10 Applicants must retain all tax invoices, official receipts, bank statements, quotations or other similar records for assistance received under the Program until 5 years after the closing day for applications – 15 October 2021.

4.11 Information provided as part of an Applicant's application to receive a payment 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.

4.12 By applying to receive a payment, an Applicant consents to:

4.12.1 Service NSW, DCS and/or Resilience NSW disclosing personal information provided by the Applicant or about the Applicant, to each other (and any other relevant government agency) for the purposes of administering, reporting on and evaluating the Program, and for the purposes of providing follow-up support to Applicants.

4.12.2 Resilience NSW, Service NSW, NSW Treasury (Small Business Commission & Business Connect team) or any other government agency contacting the Applicant after receiving a payment under the Program for the purposes of reporting on and evaluating the Program and providing follow-up support to Applicants. An Applicant agrees to provide any information or documentation that is reasonably required under this clause.

5. Conditions for Payment

5.1 It is a condition of a payment made by under the Program that:

5.1.1 an Applicant meets the eligibility criteria in clause 4.1 and is not ineligible to apply to receive payment for any of the reasons in clause 4.2

5.1.2 the application for payment complied with the requirements in clauses 4.5 to 4.9 and 4.11

5.1.3 the payment will only be used on an item included in the application.

5.2 An Applicant must take all reasonable steps to ensure that the conditions in clause 5.1 are or have been satisfied at all relevant times.

5.3 Upon receipt of payment under the Program, an Applicant declares that:

5.3.1 to the best of its knowledge, the conditions in clause 5.1 are or have been satisfied at all relevant times; and

5.3.2 it took and will take all reasonable steps to ensure that the conditions in clause 5.1 are or have been satisfied.

5.4 We or the Commonwealth may audit or investigate an Applicant to verify information provided by in support of its application and to determine whether it has complied or is complying with these Terms and Conditions. Subject to any applicable legal requirements:

5.4.1 an Applicant must provide any information or documentation that is reasonably required for the purpose of any such audit or investigation

5.4.2 we may request additional information or clarification about an Applicant from any other public entity or person for the purposes of this clause.

5.5 Notwithstanding any other provision in these Terms and Conditions, DCS, Service NSW and/or Resilience NSW 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 an Applicant has failed to comply with the law or these Terms and Conditions.

6. Payments

6.1 Payment made under the Program will be credited to the bank account identified in an Applicant's application.

6.2 Payments made in accordance with clause 6.1 will be made as act of grace payments under section 5.7(1) of the GSF Act.

7. Recovery of payments

7.1 If an Applicant has received a payment under the Program, and DCS, Service NSW and/or Resilience NSW is satisfied that the conditions in clause 5.1 were, or have been, contravened, the payment or part of the payment may be recovered from the Applicant by the Crown in a court of competent jurisdiction as debt due to the Crown, pursuant to section 5.7(3) of the GSF Act.

8. Suspension, variation or termination of the Program

8.1 Notwithstanding any other provision of these Terms and Conditions, we reserve the right, at any time, to:

8.1.1 suspend or terminate the entirety or any part of the Program

8.1.2 refuse to approve an application for payment under the Program for any reason and at our sole discretion

8.1.3 vary the Program Guidelines, these Terms and Conditions and the process for application

8.1.4 suspend the operation of, or close, the application process

8.1.5 alter or change the opening and closing date for applications

8.1.6 reduce or extend the application period.

8.2 Any changes to the Program Guidelines, these Terms and Conditions or action taken to suspend or end the Program will be notified on Service NSW’s website.

9. Limitation of liability

9.1 To the extent permitted by law, DCS, Service NSW and Resilience 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 an Applicant or any person arising directly or indirectly out of or in any way connected with the Program, including:

9.1.1 any decision to make or refuse to make a payment under the Program, including on the basis that funds are unavailable,

9.1.2 the fraudulent application for payments made under the Program,

9.1.3 any breach of these Terms and Conditions, and/or

9.1.4 any decision to suspend or terminate the entirety or any part of the Program.

10. Indemnity

10.1 An Applicant agrees to indemnify and keep indemnified DCS, Service NSW and Resilience 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 Applicant's application for payment under the Program.

11. General

11.1 Applicants are responsible for seeking their own independent legal and financial advice regarding these Terms and Conditions.

11.2 Failure by us to enforce any of our rights at any stage does not constitute a waiver of those rights. No rights under these Terms and Conditions will be waived except by notice in writing signed by both the Applicant and us.

11.3 These Terms and Conditions shall be governed by the laws of the State of New South Wales. We and all Applicants submit to the exclusive jurisdiction of the court of NSW and any court competent to hear appeals from those courts.

11.4 Where we issue a notice to the email address provided by an Applicant, the notice will be deemed to have been received by the Applicant immediately upon receipt of electronic transmission confirmation.

11.5 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.

11.6 Clauses 7, 9 and 10 contain continuing obligations and will survive termination of these Terms and Conditions.

Appendix A

AGRN 960
Disaster Types Storm and Flood
Name of Disaster NSW Storms and Floods 10 March 2021 onwards
Local Government Areas
As of 16 July 2021

Armidale
Ballina
Bathurst
Bega Valley
Bellingen
Blacktown
Blue Mountains
Bogan
Brewarinna
Byron
Cabonne
Camden
Campbelltown
Canterbury Bankstown
Central Coast
Central Darling
Cessnock City Council
Clarence Valley
Cobar
Coffs Harbour City
Coonamble
Cumberland
Dungog Shire
Eurobodalla
Fairfield
Georges River
Gilgandra
Glen Innes Severn
Goulburn Mulwaree
Greater Hume
Gunnedah
Gwydir
Hawkesbury
Hornsby
Hunter Hill
Inner West
Inverell
Kempsey
Ku-ring-gai
Kyogle
Lachlan
Lake Macquarie City
Lismore
Lithgow
Liverpool
Liverpool Plains
Maitland City
Mid-Coast
Moree Plains
Muswellbrook
Nambucca Valley
Narrabri
Narromine
Newcastle City
Northern Beaches
Oberon
Parramatta
Penrith
Port Macquarie-Hastings
Port Stephens
Queanbeyan-Palerang
Richmond Valley
Shoalhaven
Singleton
Snowy Monaro
Sutherland
Tamworth
Temora
Tenterfield
The Hills
Tweed
Upper Lachlan
Uralla
Walcha
Walgett
Warren
Wingecarribee
Wollondilly

Source: Natural Disaster Declarations – List available as of 19 July 2021

Appendix B

AGRN 954
Disaster Types Storm and Flood
Name of Disaster NSW Storms and Floods 19 February 2021 onwards
Local Government Areas
As of 26 April 2021

Clarence Valley
Coffs Harbour
Kyogle
Lismore
Nambucca Valley
Port Macquarie-Hastings
Richmond Valley

Source: Natural Disaster Declarations – List available as of 17 June 2021