Services Agreement

The Council of the Queensland Institute of Medical Research

[Insert Supplier Name]

Contract No:

Contents

Table of contents

Part 1 2

1 Agreement Details 2

Part 2: Terms and conditions 5

1 Definitions 52 Term 7

2.1 Initial Period..............................................................................................................72.2 Extended Period.......................................................................................................72.3 Monthly continuance.................................................................................................8

3 Supply of Services 83.1 Supplier to supply Services......................................................................................83.2 Requirements for supply of Services........................................................................83.3 QIMR Berghofer may require re-performance of Services.......................................83.4 Representatives........................................................................................................9

4 Price and payment 94.1 When may the Supplier invoice the Fees?...............................................................94.2 Payment by QIMR Berghofer....................................................................................94.3 No additional amounts payable..............................................................................104.4 Disputed invoices...................................................................................................104.5 Set off..................................................................................................................... 104.6 Amounts inclusive of all taxes.................................................................................10

5 Goods and Services Tax 106 Title and risk 117 Supplier’s Personnel 118 Warranties 12

8.1 Power and capacity................................................................................................128.2 Supplier warranties.................................................................................................12

9 Compliance and probity 139.1 Compliance with Laws............................................................................................139.2 Proper conduct.......................................................................................................139.3 No Conflict of Interest.............................................................................................13

59728917.15 Printed 02/05/18 (01:35) Contents 1

Contents

10 Work health and safety 1411 Records and audit 1412 QIMR Berghofer name and logo 1513 Intellectual Property Rights 15

13.1 Supplier to supply Deliverables and Background Materials....................................1513.2 IP in New Material..................................................................................................1513.3 IP in Background Material......................................................................................1513.4 Licence of IP in Background Material.....................................................................1513.5 Further assistance..................................................................................................1613.6 Moral rights.............................................................................................................1613.7 Intellectual property warranty..................................................................................1613.8 Intellectual property indemnity................................................................................1613.9 Remedial action......................................................................................................17

14 Confidentiality 1714.1 Confidential information..........................................................................................1714.2 Permitted disclosures.............................................................................................1714.3 Preventing disclosures...........................................................................................1814.4 Exclusions..............................................................................................................1814.5 Remedies for breach..............................................................................................1814.6 Right to Information................................................................................................18

15 Privacy 1916 Insurance and liability 20

16.1 Insurance coverage required..................................................................................2016.2 Maintaining coverage.............................................................................................2016.3 Evidence of insurance and currency.......................................................................20

17 Termination and consequences 2017.1 Termination of Services without cause...................................................................2017.2 Termination by QIMR Berghofer for cause.............................................................2017.3 Termination by the Supplier for cause....................................................................21

18 Consequences of Termination 2218.1 Termination for cause.............................................................................................2218.2 Survival...................................................................................................................22

19 Dispute resolution 2220 Assignment 2321 Subcontracting 2322 Notices 2323 General 24

23.1 Governing law and jurisdiction................................................................................2423.2 Invalidity and enforceability....................................................................................2423.3 Waiver.................................................................................................................... 2423.4 Variation.................................................................................................................2423.5 Further action to be taken at each party’s own expense........................................24

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Contents

23.6 Counterparts...........................................................................................................2423.7 Relationship of the parties......................................................................................2423.8 Exercise of rights....................................................................................................2523.9 Remedies cumulative.............................................................................................25

24 Interpretation 2524.1 General...................................................................................................................2524.2 Interpretation of inclusive expressions....................................................................2624.3 Business Day..........................................................................................................26

Schedule 1Specifications for the Services 27

Schedule 2Service Levels 28

Schedule 3Rates 29

Signing page 30

59728917 Contents 3

Services Agreement

Date ►

Between the parties

QIMR Berghofer The Council of the Queensland Institute of Medical Research

ABN 31 411 813 344, of 300 Herston Road, Herston, Queensland 4006

(QIMR Berghofer)

Supplier [Insert Supplier Name]

ABN [insert ABN], of [insert address]

(Supplier)

Background A. QIMR Berghofer is engaged in undertaking medical research activities and operations connected with those activities. QIMR Berghofer requires the Services in connection with QIMR Berghofer’s activities.

B. The Supplier is engaged in the business of supplying the Services, and has represented that the Services can meet the requirements QIMR Berghofer has made known to the Supplier.

C. This Agreement is the terms on which the Supplier agrees to supply, and QIMR Berghofer agrees to acquire, the Services.

Agreement This Agreement is comprised of:

1 This cover page

2 Part 1 – Agreement Details

3 Part 2 – Terms and Conditions

4 All Schedules to this Agreement and any other documents attached to, or incorporated by reference in, this Agreement.

The parties agree as follows:

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Part 1

1 Agreement Details

Item Issue Details

1. Commencement Date

(Clause 2.1)

This Agreement commences on [Insert date], (or if no date is specified, the Commencement Date is the date this Agreement is signed by the last of the parties to sign it).

2. Initial Period

(Clause 2.1)

The Initial Period of this Agreement is: [Insert Initial Period, e.g. 24 months].

3. Extended Period

(Clause 2.2)

Does QIMR Berghofer have an option to extend this Agreement after the end of the Initial Term? Yes/No

If Yes, the Extended Period is: [Insert Extended Period, e.g. 12 months]

4. Services

(Clause 3)

[Insert description of the Services below. List and attach more detailed specifications in Schedule 1.]

The Services are further described in the Specifications included in Schedule 1.

5. Deliverables

(Clause 3)

Is the Supplier required to supply any specific Deliverables as part of, or with, the Services? Yes/No

If Yes, those Deliverables are:

[Insert description of Deliverables required],

or as are further described in the Specifications.

6. Service Levels Do any particular service levels apply to the Services? Yes/No

If Yes, the Service Levels are set out in Schedule 2.

7. Site

(Clause 3)

Is the Supplier required to supply the Services at a particular Site? Yes/No

If Yes, the Site is: [Insert the site at which the Supplier must supply the Services]

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Item Issue Details

8. Fees (for the Services)

(Clause 4.1(a))

The Fees must be calculated in accordance with the Rates in Schedule 3.

The total Fees for the Services are:

[$ Insert] (excluding GST).

9. Expenses

(Clause 4.1(a))

Is the Supplier entitled to charge QIMR Berghofer for any expenses in addition to the Fees: Yes/No

If Yes, the Supplier may charge its reasonable costs actually incurred (in accordance with any relevant Rates in Schedule 3) for the following:

[Insert types of expenses that may be charged, e.g. reasonable travel and accommodation expenses]

up to a total capped amount of [Insert amount, e.g. $X per month during the Term].

10. When may the Supplier issue Invoices

(Clause 4.1(b))

The Supplier may invoice QIMR Berghofer for the Fees and any Expenses authorised by QIMR Berghofer under this Agreement as follows:

[Insert timing for invoices, eg monthly in arrears during the Term, or other basis for charging]

11. How invoices must be sent to QIMR Berghofer

(Clause 4.2(b))

[Insert details for how invoices must be addressed]

12. QIMR Berghofer’s Representative

(Clause 3.4)

Name: [Insert]

Title: [Insert]

Phone: [Insert]

Email: [Insert]

13. Supplier’s Representative

(Clause 3.4)

Name: [Insert]

Title: [Insert]

Phone: [Insert]

Email: [Insert]

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Item Issue Details

14. Insurance

(clause 16.1)

The Supplier must maintain the following insurances as required under clause 16.1: [Delete any of the below that are not applicable or add as applicable]

Insurance Details

Workers Compensation As required by Law.

Professional Indemnity For an amount of not less than $10 million in respect of each claim and in annual aggregate.

Public Liability For an amount of not less than $20 million for each occurrence and in annual aggregate.

Product Liability For an amount of not less than $20 million for each occurrence and in annual aggregate.

15. Addresses for notices

(Clause 22)

QIMR Berghofer

Attention: Chief Operating Officer

Address: [insert]

Email: [insert]

Telephone: [insert]

Facsimile: [insert]

Supplier

Attention: [insert]

Address: [insert]

Email: [insert]

Telephone: [insert]

Facsimile: [insert]

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Part 2: Terms and conditions

1 Definitions

In this Agreement, unless the context otherwise requires or the contrary intention appears, the following terms shall have the following meanings:

"Authority" means:

(a) any court or tribunal of competent jurisdiction; and

(b) any government, or any governmental or semi-governmental entity, administrative, fiscal or judicial body, authority or agency, body politic (but excluding any political party), government department, local government council, statutory authority, government instrumentality, ministry, official or public body and includes the State of Queensland and the Commonwealth of Australia.

“Background Materials” means any Materials which:

(a) exist before the Commencement Date;

(b) are developed by or on behalf of a party after the Commencement Date, but independently of the Services supplied, or to be supplied, under this Agreement; or

(c) are not otherwise New Materials.

"Business Day" means 8.00am to 5.00pm AEST Monday to Friday, excluding public holidays in Brisbane.

"Confidential Information" means any confidential information of a party, including any such information concerning QIMR Berghofer’s or the Supplier’s respective businesses, including work procedures, processes, employees, customers, services, affairs or businesses, handbooks, standards, technical knowledge, programs or data and associated documents or information, but excluding any information which is generally available in the public domain.

“Commencement Date” means the date specified in Item 1, or if no date is specified there, the date this Agreement is signed by the last of the parties to sign it.

“Conflict of Interest” means any circumstances that exist or arise which:

(a) constitute an actual conflict;

(b) constitute a known risk of conflict; or

(c) may constitute a potential conflict, or be perceived by others to be a conflict,

between the duties of the Supplier or its Personnel to QIMR Berghofer and their duties to another person in relation to the activities under this Agreement.

“Correctly Rendered Invoice” means an invoice that is rendered in the form of a Tax Invoice where:

(a) the amount claimed in the invoice is permitted to be invoiced in accordance with clause 4.1 and is accompanied by documentary evidence verifying this;

(b) the amount of the invoice is correctly calculated in Australian dollars;

(c) the invoice is set out as an itemised account, which identifies the GST exclusive amount, the GST component and the GST inclusive amount and enables QIMR Berghofer to ascertain what the invoice covers and the amount payable; and

(d) the invoice is addressed in accordance with the requirements set out in Item 11.

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“Deliverable” means all Materials supplied, or to be supplied, by the Supplier as part of supplying the Services, including any Deliverables set out in Item 5 and all New Materials.

“Expenses” means any costs and expenses of the Supplier reasonably incurred by the Supplier in supplying the Services, which must be calculated in accordance with any relevant Rates specified in Schedule 3. The Supplier may only charge QIMR Berghofer for Expenses if approved in Item 9 and then only to the extent set out in Item 9.

“Extended Period” means the period, if any, set out in Item 3.

“Fees” means the Fees set out in Item 8 (which must be calculated in accordance with the Rates in Schedule 3).

“Government Agency” means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.

“Health and Safety Incident” means any occupational health and safety related incident that is notifiable under the WHS Laws.

“Initial Period” means the period set out in Item 2.

"Insolvency Event" means:

(a) a trustee is appointed or takes possession of any property of the Supplier;

(b) an official manager, administrator, liquidator, provisional liquidator, inspector or any similar person or office is appointed to the Supplier;

(c) a receiver or a receiver and manager is appointed to the Supplier or to any of the assets of the Supplier;

(d) the Supplier enters into any assignment, compromise or scheme of arrangement with creditors or any class of creditors;

(e) an application or a petition for winding up of the Supplier is made or presented, or an order is made, or an effective resolution is passed for the winding up of the Supplier, except for the purpose of reconstruction where QIMR Berghofer’s prior consent has been obtained;

(f) the Supplier is unable to pay its debts as and when due, is or threatens to become bankrupt, or, where applicable, is subject to changes in the constitution of any partnership or person, or death; or

(g) the Supplier is subject to any similar situation, procedure, order or step in the nature of bankruptcy or insolvency or similar to those in (a) – (f) above.

“Intellectual Property Rights” means all industrial and intellectual property rights throughout the world, including all copyright and analogous rights, all rights in relation to inventions or discoveries (including patent rights), designs, registered and unregistered trade marks (including service marks), trade names, brand names, confidential information (including trade secrets) and circuit layouts. These rights include:

(a) all rights in all applications to register these rights; and

(b) all renewals and extensions of these rights.

“Item” means an Item in the Agreement Details in Part 1 of this Agreement.

"Laws" means all state and commonwealth legislation and subordinate legislation as amended, superseded or replaced from time to time and extends to include all local laws made or enforced by a local or other authority having relevant jurisdiction as amended, superseded or replaced from time to time, the common law and the principles of equity as applied from time to time in the State of Queensland, and requirements, rules and guidelines of any Authority.

“Materials” means all goods, materials, software, documents, information, data, reports and other items and things whether in hard copy, physical form, electronic form, or otherwise.

“New Materials” means all Materials that are created, developed or otherwise brought into existence by or on behalf of the Supplier in the course of, or as part of supplying, the Services.

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“Personal Information” means personal information (as that term is defined in the Information Privacy Act 2009 (Qld)) that comes into the Supplier’s possession, knowledge or control in connection with any matter under this Agreement.

“Personnel” of a person includes that person’s directors, officers, employees, contractors and agents.

"PPSA" means the Personal Property Securities Act 2009 (Cth).

“Rates” means the rates set out in Schedule 3.

"Services" means all services provided, and to be provided, by the Supplier under or in connection with this Agreement, including the Services set out in Item 4 and any Deliverables.

“Site” means the Site, if any, referred to in Item 7.

“Specifications” means all specifications for the Services, including:

(a) the specifications in, and all documents referred to in or attached to, Schedule 1;

(b) if any particular Service Levels apply under this Agreement, the Service Levels set out in, and all documents referred to in or attached to, Schedule 2;

(c) all of QIMR Berghofer’s requirements for the Services made known to the Supplier, including in any documents provided by QIMR Berghofer in connection with this Agreement (including any request for tender or proposal documents, or other invitation documents provided by QIMR Berghofer); and

(d) any proposals or responses provided by the Supplier to QIMR Berghofer (to the extent accepted by QIMR Berghofer) in response to or in connection with any request for tenders or other invitations issued by QIMR Berghofer in relation to this Agreement, and

to the extent there is any inconsistency between the contents of paragraphs (a) - (d) above, the contents of the paragraph listed higher shall apply.

“WHS Laws” means all applicable work health and safety related Laws, including:

(a) Work Health and Safety Act 2011 (Qld);

(b) regulations, codes of practice, Australian Standards or compliance codes; and

(c) directions, guidance notes or notices issued by any relevant Government Agency or agency responsible for administering work health and safety laws.

“Term” means the term of this Agreement calculated in accordance with clause 2.

2 Term

2.1 Initial Period

This Agreement commences on the Commencement Date and, unless terminated earlier in accordance with its terms, continues until the end of the Initial Period.

2.2 Extended Period

If Item 3 states that QIMR Berghofer has an option to extend this Agreement after the Initial Term, then, unless this Agreement is terminated earlier in accordance with its terms:

(a) QIMR Berghofer may give the Supplier a notice, at least 30 days before the end of the Initial Period, that QIMR Berghofer wants this Agreement to continue for the Extended Period set out in Item 3; and

(b) if QIMR Berghofer gives the Supplier a notice under clause 2.2(a), this Agreement continues after the Initial Period until the end of the Extended Period on the same terms.

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2.3 Monthly continuance

After the end of the Initial Period and any Extended Period that may apply, unless this Agreement is terminated earlier in accordance with its terms, this Agreement continues on a month to month basis, and either party may terminate this Agreement at any time by giving the other party at least 30 days’ notice, in which case this Agreement terminates at the end of that notice period.

3 Supply of Services

3.1 Supplier to supply Services

(a) During the Term the Supplier must supply the Services in accordance with:

(1) the Specifications, including any Service Levels;

(2) all reasonable directions given by QIMR Berghofer from time to time;

(3) all policies and procedures notified by QIMR Berghofer to the Supplier from time to time; and

(4) all other requirements of this Agreement.

(b) If Item 7 sets out a Site, the Supplier must supply the Services at that Site.

3.2 Requirements for supply of Services

The Supplier must ensure that it supplies all Services:

(a) in a professional and diligent manner;

(b) in such a way as to achieve any objectives and outcomes set out in the Specifications;

(c) in accordance with, and so as to meet, any dates or other milestones set out in the Specifications;

(d) in a manner that causes as little disruption as possible to QIMR Berghofer’s activities;

(e) in compliance with all Laws; and

(f) in such a way as not to cause QIMR Berghofer to be in breach of any Laws.

3.3 QIMR Berghofer may require re-performance of Services

(a) If the Supplier fails to supply any Services in accordance with this Agreement, including the requirements in this clause 3, without limiting any other rights QIMR Berghofer may have;

(1) QIMR Berghofer may give the Supplier notice requiring the Supplier to promptly re-perform the Services; and

(2) if QIMR Berghofer gives the Supplier a notice under clause 3.3(a)(1), the Supplier must promptly re-perform those Services in accordance with this Agreement and at the Supplier’s own cost.

(b) If the Supplier fails to re-perform any Services in accordance with clause 3.3(a), without limiting any other rights QIMR Berghofer may have:

(1) QIMR Berghofer may arrange for those Services to be performed by another person; and

(2) the Supplier must reimburse QIMR Berghofer for the costs of those Services being performed by that other person within 14 days after a notice from QIMR Berghofer.

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3.4 Representatives

(a) Each party must:

(1) appoint, and maintain for the Term a suitable person to represent it and supervise its obligations under this Agreement (Representative); and

(2) ensure that its Representative regularly meets, communicates and works with the other party’s Representative to:

(A) manage the progress of this Agreement; and

(B) be the first point of contact to address any issues that may arise under or in connection with this Agreement.

(b) The details of:

(1) QIMR Berghofer’s Representative are set out in Item 12; and

(2) the Supplier's Representative are set out in Item 13.

(c) Subject to clause 3.4(d), either party may replace the person acting as its Representative by notifying the other party of the new Representative’s details.

(d) If QIMR Berghofer reasonably requests, the Supplier must replace its Representative with another person approved by QIMR Berghofer (such approval not to be unreasonably withheld).

4 Price and payment

4.1 When may the Supplier invoice the Fees?

(a) The parties acknowledge and agree that the total amount payable by QIMR Berghofer under or in connection with this Agreement is:

(1) the Fees set out in Item 8; and

(2) if Item 9 states that the Supplier may charge Expenses, the reasonable Expenses of the Supplier necessarily incurred in supplying the Services to the extent set out in Item 9,

which must be calculated in accordance with the Rates set out in Schedule 3.

(b) The Supplier may invoice QIMR Berghofer for the Fees and any Expenses authorised by QIMR Berghofer under this Agreement at the times set out in Item 10.

4.2 Payment by QIMR Berghofer

(a) QIMR Berghofer must pay the Fees and any Expenses by the end of the calendar month following the calendar month in which QIMR Berghofer receives a Correctly Rendered Invoice from the Supplier for those Fees and Expenses (as applicable). (For example, if QIMR Berghofer receives a Correctly Rendered Invoice in May of a calendar year, QIMR Berghofer must pay that invoice by 30 June in that calendar year.)

(b) The Supplier must send any invoices for any amount due under this Agreement to the person and at the address set out in Item 11.

(c) The Supplier must provide any further details in relation to an invoice that are reasonably requested by QIMR Berghofer.

(d) The parties acknowledge and agree that the making of a payment by QIMR Berghofer is not evidence:

(1) that QIMR Berghofer accepts that any Services have been supplied or accepted in accordance with this Agreement;

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(2) of any waiver by or estoppel against QIMR Berghofer in relation to any right or action which QIMR Berghofer may have at any time against the Supplier; or

(3) that the Supplier has carried out its obligations under this Agreement.

4.3 No additional amounts payable

The Supplier acknowledges and agrees that:

(a) the Fees; and

(b) if Item 9 states that the Supplier may charge Expenses under this Agreement, the reasonable Expenses of the Supplier necessarily incurred in supplying the Services to the extent set out in Item 9,

are the total of all amounts payable by QIMR Berghofer to the Supplier under, and in connection with, this Agreement, and without limiting clause 3.3(a) (or any other provision of this Agreement that refers to the Supplier performing obligations under this Agreement at its own cost), the Supplier is not permitted to invoice QIMR Berghofer for, and QIMR Berghofer has no liability to pay, any amounts in addition to the Fees and any permitted Expenses, including any other amounts in relation to travel, accommodation or third party costs that may be related to the Supplier performing its obligations under this Agreement.

4.4 Disputed invoices

(a) If QIMR Berghofer disputes any amount invoiced by the Supplier, QIMR Berghofer:

(1) may withhold payment of the disputed amount and will give the Supplier notice of the disputed amount and the reasons for the dispute; and

(2) must pay any undisputed amount.

(b) If the Supplier refuses, neglects or fails to perform an obligation under this Agreement, QIMR Berghofer may withhold the payment of any amounts otherwise due until the Supplier performs the relevant obligation in accordance with the Agreement.

4.5 Set off

QIMR Berghofer may reduce any amount due to the Supplier under this Agreement by any amount that is due and payable by the Supplier to QIMR Berghofer in connection with this Agreement. This does not limit QIMR Berghofer’s right to recover those amounts in other ways.

4.6 Amounts inclusive of all taxes

(a) Subject to clause 5, if QIMR Berghofer is obliged to make any deduction or withholding on account of any taxes in connection with this Agreement, QIMR Berghofer may withhold the amount due to the Supplier and will promptly pay that amount to the relevant authority.

(b) QIMR Berghofer will have no obligation to pay an additional amount to the Supplier in relation to any amounts withheld on account of any taxes. QIMR Berghofer will provide the Supplier with all reasonable documentation required by the Supplier so that the Supplier can establish that QIMR Berghofer has paid the taxes in order to claim any deductions, refunds, credits, allowances or remissions owed to the Supplier.

5 Goods and Services Tax

(a) In this clause (and elsewhere in this Agreement where applicable):

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(1) any reference to a term defined or used in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) is, unless the context indicates otherwise, a reference to that term as defined or used in the GST Act;

(2) a reference to GST payable by or input tax credit of a party includes the corresponding GST payable by or input tax credit of the representative member of the GST group of which that party is a member; and

(3) the term 'Excess GST' has the meaning given to that term in section 142-10 of the GST Act.

(b) Unless otherwise expressly stated, all amounts referred to in this Agreement, including amounts used to determine a payment to be made by one party to the other (other than an amount referred to in clause 5.1(g)), are exclusive of GST (GST Exclusive Consideration).

(c) To the extent that GST is payable in respect of all or any part of a supply made by a party (‘supplier’) under or in connection with this Agreement, the GST Exclusive Consideration to be provided under this Agreement for that supply is increased by an amount equal to the GST payable by the supplier (excluding any Excess GST).

(d) The recipient must pay the additional amount payable under clause 5.1(c) to the supplier at the same time and in the same manner as the GST Exclusive Consideration for the supply is otherwise required to be provided.

(e) The supplier must issue a tax invoice to the recipient of the taxable supply at or before the time of payment of the additional amount on account of GST under clause 5.1(c) or at such other time as the parties agree.

(f) Whenever an adjustment event occurs in relation to any taxable supply made under or in connection with this Agreement the supplier must determine the net GST in relation to the supply (taking into account any adjustment and excluding any Excess GST) and if the net GST differs from the amount previously paid under clause 5.1(d), the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.

(g) If one of the parties to this Agreement is entitled to be reimbursed or indemnified for a loss, cost, expense or outgoing incurred in connection with this Agreement, then the amount of the reimbursement or indemnity payment must first be reduced by an amount equal to any input tax credit to which the party being reimbursed or indemnified is entitled in relation to that loss, cost, expense or outgoing and then, if the amount of the payment is consideration or part consideration for a taxable supply, it must be increased on account of GST in accordance with clause 5.1(d).

6 Title and risk

Except in relation to title in Intellectual Property Rights (which is dealt with in clause 13), title and risk in all Deliverables passes to QIMR Berghofer when the Supplier provides those Deliverables to QIMR Berghofer.

7 Supplier’s Personnel

(a) The Supplier must ensure that all of its Personnel involved in supplying the Services at all times hold, maintain and satisfy all qualifications and requirements reasonably required to supply the Services under this Agreement.

(b) If QIMR Berghofer is not reasonably satisfied with the performance or conduct of any of the Supplier’s Personnel in connection with this Agreement, QIMR Berghofer may, in addition to any other rights which it may have, require the Supplier to cease using that person in connection with the supply of Services under this Agreement by giving notice to the Supplier.

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(c) If QIMR Berghofer gives the Supplier a notice under clause 7.1(b), the Supplier must promptly cease using any Personnel notified by QIMR Berghofer under in connection with the supply of Services under this Agreement.

8 Warranties

8.1 Power and capacity

(a) Each party represents and warrants that:

(1) the execution, delivery and performance by it of this Agreement:

(A) complies with its constitution or other constituent documents; and

(B) does not constitute a breach of any Law or obligation, or cause or result in a default under any agreement by which it is bound and which would prevent it from entering into and performing its obligations under this Agreement;

(2) it has all necessary authorisations for the execution, delivery and performance by it of this Agreement in accordance with its terms;

(3) it has full power and capacity to own its own assets and to enter into and perform its obligations under this Agreement; and

(4) it is validly incorporated, organised and subsisting in accordance with the Laws of its place of incorporation.

(b) The Supplier enters into and performs this Agreement on its own account and not as trustee for or nominee of any other person.

8.2 Supplier warranties

The Supplier represents and warrants that:

(a) all Services supplied under this Agreement will comply with the Specifications;

(b) the Services will be fit for the purpose or purposes made known by QIMR Berghofer, and will not cause any fault, malfunction or interruption to QIMR Berghofer’s other facilities and operations;

(c) the Services comply with the requirements of all Laws;

(d) it is not aware of any failure of the Services to satisfy any product safety standards or requirements of Law;

(e) it will supply all Services with due care and skill, in a proper and professional manner, and to a standard of diligence and care consistent with prudent standards and practices expected of a competent supplier experienced in supplying equipment and services of the nature of the Services;

(f) any user documentation provided under this Agreement will be sufficient to enable the full use of Services by QIMR Berghofer;

(g) the Supplier has all rights necessary for title in the Deliverables to pass to QIMR Berghofer, free of all encumbrances, including security interests under the PPSA, in accordance with this Agreement;

(h) the Deliverables are, and will remain, free of all encumbrances, including security interests under the PPSA;

(i) any products recommended or otherwise specified by the Supplier for use by QIMR Berghofer in conjunction with the Services, are sufficient and appropriate to enable the Services to meet the Specifications; and

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(j) it will not introduce, or permit the introduction of, any software viruses into QIMR Berghofer’s information technology environment in connection with the supply of the Services.

9 Compliance and probity

9.1 Compliance with Laws

(a) The Supplier must, and must ensure that its Personnel:

(1) comply with all Laws in connection with its obligations under this Agreement; and

(2) hold and maintain all licenses, permits, permissions and authorities necessary to perform its obligations under this Agreement.

(b) The Supplier must, if requested by QIMR Berghofer, provide evidence of compliance with its obligations under this clause to the satisfaction of QIMR Berghofer.

9.2 Proper conduct

(a) The Supplier must not offer anything to QIMR Berghofer or any Personnel of QIMR Berghofer, or to a parent, spouse, child or associate of any Personnel of QIMR Berghofer, or any inducement, gift or reward, which could in any way tend to influence QIMR Berghofer’s actions in relation to this Agreement.

(b) The Supplier represents and warrants on entering into this Agreement and at all times during this Agreement that:

(1) neither the Supplier nor any of its Personnel have been involved in any fraud, dishonest or criminal activity in connection with the supply of services of a nature similar to the Services; and

(2) it must not and must ensure that its Personnel do not engage in or condone any bribery, corruption or collusion in the supply of Services.

(c) The Supplier must immediately report any evidence or suspicion of bribery, corruption or collusion by the Supplier or its Personnel to QIMR Berghofer.

(d) In this clause references to ‘bribery’ include requesting or accepting, or providing or attempting to provide, any benefits of any kind to, from or on behalf of any QIMR Berghofer or Queensland Government Personnel or any other person in connection with this Agreement.

9.3 No Conflict of Interest

(a) The Supplier warrants that no Conflict of Interest exists at the date it enters into this Agreement.

(b) The Supplier must:

(1) immediately inform QIMR Berghofer on my becoming aware of the existence or possibility of a Conflict of Interest in connection with this Agreement;

(2) at all times during this Agreement use its best endeavours to ensure that no action is taken by itself, or its Personnel, which results in a Conflict of Interest; and

(3) within 5 Business Days after a request by QIMR Berghofer, advise QIMR Berghofer in writing of all potential and actual Conflicts of Interest, including details of the conflict, the Personnel involved, and the steps taken to address the conflict.

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10 Work health and safety

(a) If required by QIMR Berghofer at any time, the Supplier must undertake and attend, and ensure that its Personnel involved in supplying the Services undertake and attend, any site or safety induction training to be provided by QIMR Berghofer.

(b) The Supplier must at all times:

(1) ensure that all Services are supplied safely and in a manner that does not put the health and safety of any person at risk;

(2) comply with its duties under WHS Laws;

(3) consult, co-operate and co-ordinate with QIMR Berghofer regarding work health and safety matters relevant to the Services; and

(4) following a Health and Safety Incident (which requires notification to a regulator under the WHS Laws) in connection with the Services:

(A) comply with any notification obligations under the WHS Laws;

(B) immediately upon becoming aware of the incident, notify QIMR Berghofer of that incident;

(C) undertake a risk assessment in relation to the incident and ensure all reasonably practicable control measures identified during that risk assessment are implemented to eliminate, so far as is reasonably practicable, any risk of a similar incident occurring again;

(D) maintain any records relating to the Health and Safety Incident; and

(E) provide QIMR Berghofer with a written report of the Health and Safety Incident.

(c) Without limiting clause 10.1(b), the Supplier must, and must ensure that all of its Personnel and sub-contractors, when entering onto QIMR Berghofer premises, dealing with QIMR Berghofer Personnel or members of the public, or using QIMR Berghofer facilities, equipment or resources, comply with all directions made by QIMR Berghofer, and all applicable rules, policies, standards, codes of conduct, and procedures brought to its attention, including those relating to security, workplace health and safety and appropriate use of information and communication technology.

11 Records and audit

The Supplier must:

(a) provide to QIMR Berghofer all information and records, and access to the Supplier’s Personnel, reasonably requested by QIMR Berghofer from time to time to verify the Supplier’s compliance with this Agreement; and

(b) allow QIMR Berghofer and any auditor nominated by QIMR Berghofer to:

(1) enter any premises used by the Supplier in connection with supplying the Services; and

(2) inspect the documents and records in the Supplier’s possession or control relating to the Services,

at all reasonable times for the purposes of reviewing the Supplier’s compliance with this Agreement.

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12 QIMR Berghofer name and logo

(a) The Supplier must not in any circumstances (including in any advertising or promotional material):

(1) use any trade mark or logo of QIMR Berghofer;

(2) expressly or impliedly claim or represent that QIMR Berghofer endorses, recommends, approves or authorises the Supplier or any equipment or services provided by it; or

(3) make or permit any public statement concerning QIMR Berghofer or this Agreement, including by way of disclosure of information to or through any communications media or any press release, advertisement, information, publication, document, article or promotional material,

without QIMR Berghofer’s prior written approval.

(b) Any approval by QIMR Berghofer under clause 12.1(a) ceases if and when this Agreement ends or is terminated.

13 Intellectual Property Rights

13.1 Supplier to supply Deliverables and Background Materials

The Supplier must supply to QIMR Berghofer all Deliverables, including all Background Materials of the Supplier that may be necessary or desirable for QIMR Berghofer to:

(a) make full use of the Deliverables; or

(b) receive the full benefit of the Services,

whether or not those Background Materials are expressly referred to in the Specifications or as part of the Deliverables.

13.2 IP in New Material

(a) All Intellectual Property Rights in all New Materials vest in QIMR Berghofer on their creation.

(b) In order to give effect to clause 13.2(a), the Supplier presently assigns all existing and future Intellectual Property Rights in all New Materials to QIMR Berghofer.

13.3 IP in Background Material

Each party retains ownership of all of their Intellectual Property Rights in their respective Background Materials, and this Agreement does not assign ownership of any Intellectual Property Rights in any Background Materials of either party.

13.4 Licence of IP in Background Material

(a) QIMR Berghofer grants to the Supplier for the Term of this Agreement a non-exclusive, royalty-free licence to use, copy, modify and adapt the Intellectual Property Rights in:

(1) all Background Materials of QIMR Berghofer; and

(2) New Materials,

to the extent required for the Supplier to perform its obligations under this Agreement.

(b) The Supplier grants, and must procure that all relevant third parties grant, to QIMR Berghofer a world-wide, perpetual, non-exclusive, irrevocable, royalty-free licence (including the right to sublicense) to exercise all Intellectual Property Rights in:

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(1) all Background Materials of the Supplier; and

(2) any other aspects of any Services in respect of which Intellectual Property Rights may exist, but which are not Materials,

as may be necessary for QIMR Berghofer to make full use of the Deliverables and receive the full benefit of the Services.

13.5 Further assistance

The Supplier must (at the Supplier’s own cost) do all things requested at any time by QIMR Berghofer to further assure the:

(a) assignment to, and ownership by, QIMR Berghofer of Intellectual Property Rights in clause 13.2; and

(b) licence to QIMR Berghofer of Intellectual Property Rights in clause 13.4(b).

13.6 Moral rights

To the extent individuals are entitled to assert any Moral Rights, in any Deliverables or Background Materials of the Supplier, the Supplier must procure from the authors of those Deliverables and Background Materials all necessary consents and waivers in writing authorising QIMR Berghofer to do any act or omit to act in any way that would otherwise infringe that person's Moral Rights.

13.7 Intellectual property warranty

The Supplier represents and warrants that:

(a) the Background Materials to be supplied by the Supplier under clause are all of the Background Materials that may be necessary or desirable for QIMR Berghofer to:

(1) make full use of the Deliverables; or

(2) receive the full benefit of the Services;

(b) it has and will have at all relevant times, full authority to:

(1) make the assignment referred to in clause 13.2(b); and

(2) grant the licences granted under clause 13.4(b); and

(c) use by QIMR Berghofer of all Deliverables, Background Materials of the Supplier and Services in accordance with this Agreement will not infringe the Intellectual Property Rights or Moral Rights of any person.

13.8 Intellectual property indemnity

(a) Subject to clause 13.8(b), the Supplier must indemnify QIMR Berghofer against any and all losses, damages, costs and expenses (including all legal costs) suffered or incurred by QIMR Berghofer (as and when they are suffered or incurred) as a result of any claim by any person that use of any:

(1) Deliverables;

(2) Background Materials of the Supplier; or

(3) Services,

by QIMR Berghofer in accordance with this Agreement infringes the Intellectual Property Rights or Moral Rights of any person (IPR Claim).

(b) The Supplier will not be liable to indemnify QIMR Berghofer under clause 13.8(a) to the extent that the relevant IPR Claim was caused by:

(1) a modification of the relevant part of the Deliverables, Background Materials of the Supplier, or Services, that was not:

(A) made by or on behalf of the Supplier;

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(B) approved by the Supplier; or

(C) made in accordance with the Supplier’s instructions or direction; or

(2) QIMR Berghofer using the relevant part of the Deliverables, Background Materials of the Supplier, or Services, in a manner which was not intended or authorised by the Supplier under or in connection with this Agreement.

13.9 Remedial action

If there is an IPR Claim, without limiting the Supplier’s obligations under clause 13.8, the Supplier must at its option either promptly:

(a) procure for QIMR Berghofer the right to possess, use and receive the benefit of the Deliverables, Background Materials of the Supplier and Services as contemplated under this Agreement free of any claim or liability for infringement; or

(b) modify the Deliverables, Background Materials of the Supplier and Services so that they cease to infringe those Intellectual Property Rights (while still complying with the requirements of this Agreement, including the Specifications).

14 Confidentiality

14.1 Confidential information

(a) Notwithstanding anything else in this clause 14:

(1) QIMR Berghofer may fully use and disclose (including by way of sublicensing) all Intellectual Property Rights assigned and licensed to QIMR Berghofer under clause 13, even if those Intellectual Property Rights include any Confidential Information of the Supplier; and

(2) nothing in this clause 14 operates to restrict in any way the use QIMR Berghofer may make of any Intellectual Property Rights assigned or licensed to it under clause 13.

(b) Each party (Recipient) agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party (Disclosing Party).

(c) The obligation of confidence in this clause 14 extends to Confidential Information provided to or obtained by a party before entering into this Agreement.

14.2 Permitted disclosures

(a) The Recipient may disclose Confidential Information of the Disclosing Party only on a confidential basis:

(1) to its Personnel to the extent necessary for the Recipient to exercise any of its rights or perform any of its obligations under this Agreement; or

(2) with the prior written consent of the Disclosing Party.

(b) The Recipient must ensure the Confidential Information of the Disclosing Party is kept confidential by any person to whom it discloses that information.

(c) If the Recipient is QIMR Berghofer, without limiting any of QIMR Berghofer’s other rights under this Agreement, QIMR Berghofer may disclose Confidential Information of the Supplier:

(1) to any Minister, Department or Officer of the Queensland Government or any of their advisors; or

(2) for the purposes of complying with any request or application for access to, or copies of, any of the Supplier's Confidential Information made under

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any Law (including for the purposes of responding to an application or request for access to the Confidential Information of the Supplier under that Law).

14.3 Preventing disclosures

The Recipient must take all steps and do all such things as may be reasonably necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the Disclosing Party.

14.4 Exclusions

The obligations of confidence in this clause 14 do not apply to Confidential Information that is:

(a) required to be disclosed by applicable laws, pursuant to any Authority’s direction or request, or by the rules of any stock exchange upon which the Recipient’s securities are listed, provided that, to the extent possible:

(1) before disclosing any information, the Recipient:

(A) provides a reasonable amount of prior notice to the Disclosing Party; and

(B) uses all reasonable endeavours to limit the amount of disclosure required or, if that is not possible, endeavour to have such Confidential Information maintained in confidence; and

(2) the Recipient discloses the minimum amount of Confidential Information required to satisfy the law, direction, request or rules.

(b) in the public domain otherwise than as a result of a breach of this Agreement or another obligation of confidence;

(c) independently developed by the Recipient; or

(d) already known by the Recipient independently of its involvement in this Agreement or interaction with the Disclosing Party and free of any obligation of confidence.

14.5 Remedies for breach

Each party acknowledges that:

(a) the value of the Disclosing Party's Confidential Information is such that an award of damages or an account of profits may not adequately compensate if this clause 14 is breached; and

(b) without in any way compromising its right to seek damages or any other form of relief in the event of a breach of this clause 14, a party may seek and obtain an ex parte interlocutory or final injunction to prohibit or restrain the other party or its Personnel from any breach or threatened breach of this clause 14.

14.6 Right to Information

(a) The Supplier acknowledges and agrees that:

(1) the Right to Information Act 2009 (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 the documents are exempt or on balance, disclosure is contrary to the public interest;

(3) information contained in or connected with the Agreement is potentially subject to disclosure to third parties; and

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(4) accordingly, QIMR Berghofer cannot guarantee that any information provided by the Supplier will be protected from disclosure under the RTI Act.

(b) Notwithstanding any confidentiality or other obligations of QIMR Berghofer under this Agreement, the Supplier acknowledges and agrees that QIMR Berghofer is entitled to publish on Queensland Government websites (including www.hpw.qld.gov.au/qtenders under ‘eTender system for Government Suppliers’) or by any other means, details including the following:

(1) the name and address of QIMR Berghofer and the Supplier;

(2) a description of the Agreement and Services;

(3) the commencement date of the Agreement; and

(4) the value of the Agreement.

15 Privacy

(a) If the Supplier collects or has access to Personal Information in connection with this Agreement, the Contractor must:

(1) comply with Parts 1 and 3 of Chapter 2 of the Information Privacy Act 2009 (Qld) in relation to the discharge of its obligations under this Agreement, as if the Supplier was QIMR Berghofer;

(2) not use Personal Information other than for the purposes of the performance of the Services, unless required or authorised by Law;

(3) not disclose Personal Information without the consent of QIMR Berghofer, unless required or authorised by Law;

(4) not transfer Personal Information outside of Australia without the consent of QIMR Berghofer;

(5) ensure that access to Personal Information is restricted to those of its Personnel who require access in order to perform their duties;

(6) ensure that its Personnel do not access, use or disclose Personal Information other than in the performance of their duties;

(7) ensure that its sub-contractors who have access to Personal Information comply with the same obligations as those imposed on the Supplier under this clause;

(8) fully co-operate with QIMR Berghofer to enable QIMR Berghofer to respond to applications for access to, or amendments of a document containing an individual's Personal Information and to privacy complaints; and

(9) comply with such other privacy and security measures as QIMR Berghofer reasonably advises the contractor in writing from time to time.

(b) On request by QIMR Berghofer, the Supplier must obtain from its Personnel and sub-contractors an executed deed of privacy in a form acceptable to QIMR Berghofer.

(c) The Supplier must immediately notify QIMR Berghofer on becoming aware of any breach of clause 15.1(a)

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16 Insurance and liability

16.1 Insurance coverage required

(a) The Supplier must effect and maintain in a form and on terms acceptable to QIMR Berghofer and with a reputable insurer registered to conduct insurance business in Australia, insurance in respect of the Services and the Supplier’s obligations under this Agreement, including as a minimum the insurances set out in Item 14.

(b) The requirement to hold any particular insurance under this Agreement does not expand or limit any liability of the Supplier under this Agreement.

16.2 Maintaining coverage

The Supplier must maintain:

(a) workers compensation insurance for the duration of this Agreement; and

(b) all other insurance policies required under this Agreement for at least 7 years after the expiry or termination of this Agreement.

16.3 Evidence of insurance and currency

The Supplier must:

(a) promptly after any request by QIMR Berghofer from time to time, provide to QIMR Berghofer:

(1) evidence of the terms and currency of all insurance policies required under this Agreement; and

(2) all other information requested by QIMR Berghofer in relation to the Supplier’s insurances; and

(b) notify QIMR Berghofer of any claim against any of the Supplier’s insurance policies that may materially affect the cover under that insurance policy within 5 Business Days after becoming aware of the claim.

17 Termination and consequences

17.1 Termination of Services without cause

(a) At any time during any Extended Period, QIMR Berghofer may terminate this Agreement, either in whole or in respect of part of the Services only, without cause in its absolute discretion by giving at least 30 days’ prior written notice to the Supplier.

(b) If QIMR Berghofer terminates this Agreement under clause 17.1(a), QIMR Berghofer:

(1) agrees to pay to the Supplier that proportionate part of any Fees and permitted Expenses that applies for all Services supplied by the Supplier in accordance with this Agreement up to the effective date of termination; and

(2) QIMR Berghofer has no further liability to the Supplier in respect of that termination.

17.2 Termination by QIMR Berghofer for cause

Without limiting any other rights QIMR Berghofer may have under this Agreement or at Law, QIMR Berghofer may terminate this Agreement, either in whole or in respect of part of the Services only, by issuing a written notice to the Supplier if:

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(a) (Breach of Agreement) the Supplier breaches any term of this Agreement and:

(1) the breach is not capable of remedy; or

(2) the breach is capable of remedy and the Supplier fails to:

(A) remedy the breach within 30 days (or such longer time as QIMR Berghofer allows) after receiving notice from QIMR Berghofer requiring the breach to be remedied; and

(B) satisfy QIMR Berghofer that the Supplier has taken action to prevent a re-occurrence of the breach;

(b) (Recurring Breach) the following occurs:

(1) the Supplier breaches this Agreement on 3 or more separate occasions that are notified by QIMR Berghofer (whether or not such breaches are remedied);

(2) QIMR Berghofer issues the Supplier with a notice stating that any further breach of this Agreement will give QIMR Berghofer the right under this clause to terminate this Agreement; and

(3) the Supplier commits a further breach of any provision of this Agreement;

(c) (Insolvency) the Supplier becomes subject to an Insolvency Event;

(d) (Wrongful assignment) the Supplier assigns or subcontracts, or purports to assign or subcontract, its rights otherwise than as permitted by this Agreement; or

(e) (Fraud or dishonesty) the Supplier or any of its Personnel have been found guilty of an offence involving fraud or dishonesty.

17.3 Termination by the Supplier for cause

(a) Without limiting any other rights the Supplier may have under this Agreement or at Law, the Supplier may terminate this Agreement by issuing a written notice to QIMR Berghofer if:

(1) (Breach of Agreement) QIMR Berghofer breaches any term of this Agreement (other than in relation to non-payment, which must be dealt with under clause 17.3(a)(3)) and:

(A) the breach is not capable of remedy; or

(B) the breach is capable of remedy and QIMR Berghofer fails to remedy the breach within 30 days (or such longer time as the Supplier allows) after receiving notice from the Supplier requiring the breach to be remedied;

(2) (Insolvency) QIMR Berghofer becomes subject to an Insolvency Event; or

(3) (Non-Payment) the following occurs:

(A) QIMR Berghofer fails to pay any amount due to the Supplier in accordance with this Agreement which remains unpaid for more than 14 days;

(B) the Supplier provides QIMR Berghofer with a notice setting out the details of the amount the Supplier claims is due and the circumstances surrounding the Supplier’s invoices for that amount (Payment Notice); and

(C) QIMR Berghofer does not respond within 30 days of receipt of the Payment Notice by either:

(i) disclosing the reason for the non-payment (for example, because the Supplier has failed to submit a Correctly Rendered Invoice for the amount, or QIMR Berghofer has disputed an invoice in accordance with this Agreement); or

(ii) paying the amount claimed by the Supplier.

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(b) If the Supplier disagrees with any reasons for non-payment provided by QIMR Berghofer under clause 17.3(a)(3)(C)(i), the Supplier must notify the matter as a Dispute in accordance with clause 19.1(b), and may not terminate this Agreement during the period the Dispute is addressed under those clauses.

18 Consequences of Termination

18.1 Termination for cause

Without limiting any other rights either party may have under this Agreement or at Law, if QIMR Berghofer terminates this Agreement under clause 17.2, or the Supplier terminates this Agreement under clause 17.3:

(a) the Supplier must cease supplying the terminated Services that are current as at the effective date of termination;

(b) subject to clause 18.1(c), QIMR Berghofer must pay to the Supplier all amounts that are due and payable to the Supplier under this Agreement up to the effective date of termination;

(c) the Supplier must repay to QIMR Berghofer any amounts paid in advance by QIMR Berghofer for Services that are not yet supplied before the effective date of termination; and

(d) each party must return to the other, or destroy, the Confidential Information of the other party.

18.2 Survival

The provisions of this Agreement which are expressed to survive, or are capable of surviving, having effect after the expiration or termination of this Agreement will remain in full force and effect following the expiration or termination of this Agreement, including clauses 8, 12, 13, 14, 15, 16, 18, 19 and 20.

19 Dispute resolution

(a) Neither party may commence legal proceedings or arbitration in relation to this Agreement (except proceedings seeking interlocutory relief) in respect of any dispute in relation to this Agreement (Dispute) unless it has first complied with this clause 19.

(b) A party claiming that a Dispute has arisen must notify the other party with reasonable details of the Dispute.

(c) Within 14 days after a notice under clause 19.1(b) each party must nominate in writing to the other party an employee of that party to address the Dispute with the other party.

(d) During the 30 day period after a notice is given under clause 19.1(c) (or if the parties agree a longer period, that longer period) each party’s nominee must use his or her best efforts to resolve the Dispute.

(e) If the Dispute is not resolved within the time referred to in or agreed under clause 19.1(d), then the parties must refer the Dispute to mediation:

(1) for mediation, in accordance with the Australian Commercial Disputes Centre (ACDC) Mediation Guidelines; and

(2) to a mediator agreed by the parties, or if the parties do not agree on a mediator, a mediator nominated by the then current Chief Executive Officer of ACDC or the Chief Executive Officer’s nominee (or if no such person is available or willing to nominate a mediator, the then current President of the Queensland Law Society).

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(f) Except in relation to QIMR Berghofer’s right to withhold payment of disputed amounts under clause 4.4(a)(1), each party must continue performing their obligations in accordance with this Agreement during any Dispute.

(g) Subject to clause 17.3(a)(3), nothing in this clause 19 affects a party’s rights to terminate this Agreement.

20 Assignment

(a) The Supplier must not assign or otherwise transfer any right or obligation under this Agreement without QIMR Berghofer’s prior written consent.

(b) Subject to clause 20.1(c), QIMR Berghofer must not assign or otherwise transfer any right or obligation under this Agreement without the Supplier’s prior written consent.

(c) QIMR Berghofer may by giving a notice to the Supplier transfer its rights and obligations in whole or in part to any person that is a related body corporate (as that term is defined in the Corporations Act 2001 (Cth)) from time to time of QIMR Berghofer.

(d) If clause 20.1(c) applies, the Supplier must execute a deed of novation in a form acceptable to QIMR Berghofer and return it within 7 days after receipt of a notice from QIMR Berghofer advising of the transfer and requiring the Supplier to execute the deed of novation.

(e) For the purposes of this clause 20, any change in control (as defined in section 9 of the Corporations Act 2001 (Cth)) of the Supplier or any holding company or holding trust of the Supplier will be deemed to be an assignment by the Supplier of its rights under this Agreement.

21 Subcontracting

(a) The Supplier must not subcontract any part of its obligations under this Agreement without obtaining the prior written consent of QIMR Berghofer.

(b) Any consent by QIMR Berghofer to subcontract any of the Supplier’s obligations under this Agreement does not relieve the Supplier from any of its liabilities or obligations under this Agreement. The Supplier is liable for any act or omission, default or negligence of any subcontractor or any employee or agent of the subcontractor as if it were the act, omission, default or negligence of the Supplier.

22 Notices

(a) All notices to be given under this Agreement must be in writing and delivered in person or by post, fax or email to the address for notices set out in Item 15 or to such other address as a party notifies to the other party as its address for notices.

(b) Any notice will be deemed to have been served:

(1) where the notice is delivered in person, on the date it is delivered;

(2) where the notice is posted, on the third Business Day after the notice has been posted;

(3) where the notice has been faxed, then, provided the sender receives a transmission report which confirms that the facsimile was sent in its entirety to the facsimile number of the recipient, the time it was received (unless that time is not between 9am to 5pm on a Business Day in which case it will be deemed to be served at 9am on the next Business Day); or

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(4) where the notice has been sent by email, when the email (including any attachment) comes to the attention of the recipient party or a person acting on its behalf.

23 General

23.1 Governing law and jurisdiction

This Agreement is governed by the law in force in Queensland, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in Queensland and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.

23.2 Invalidity and enforceability

(a) If any provision of this Agreement is invalid under the law of any jurisdiction the provision is enforceable in that jurisdiction to the extent that it is not invalid, whether it is in severable terms or not.

(b) Clause 23.2(a) does not apply where enforcement of the provision of this Agreement in accordance with clause 23.2(a) would materially affect the nature or effect of the parties’ obligations under this Agreement.

23.3 Waiver

No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver. The meanings of the terms used in this clause are as follows.

(a) ‘conduct’, includes delay in the exercise of a right;

(b) ‘right” means any right arising under or in connection with this Agreement and includes the right to rely on this clause;

(c) ‘waiver’ includes an election between rights and remedies, and conduct which might otherwise give rise to an estoppel.

23.4 Variation

A variation of any term of this Agreement must be in writing and signed by the parties.

23.5 Further action to be taken at each party’s own expense

Each party must, at its own expense, do all things and execute all documents necessary to give full effect to this Agreement and the transactions contemplated by it.

23.6 Counterparts

This Agreement may be executed in any number of counterparts. All counterparts, taken together, constitute one instrument. A party may execute this Agreement by signing any counterpart.

23.7 Relationship of the parties

Nothing in this Agreement gives a party authority to bind any other party in any way. Nothing in this Agreement imposes any fiduciary duties on a party in relation to any other party.

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23.8 Exercise of rights

(a) Unless expressly required by the terms of this Agreement, a party is not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this Agreement.

(b) A party may (without any requirement to act reasonably) impose conditions on the grant by it of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this Agreement. Any conditions must be complied with by the party relying on the consent, approval or waiver.

23.9 Remedies cumulative

The rights and remedies provided in this Agreement are in addition to the other rights and remedies given by law independently of this Agreement.

24 Interpretation

24.1 General

In this Agreement:

(a) Headings and bold type are for convenience only and do not affect the interpretation of this Agreement.

(b) The singular includes the plural and the plural includes the singular.

(c) Words of any gender include all genders.

(d) Other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning.

(e) An expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency as well as an individual.

(f) A reference to a clause, party, schedule, attachment or exhibit is a reference to a clause of, and a party, schedule, attachment or exhibit to, this Agreement.

(g) A reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them.

(h) A reference to a document includes all amendments or supplements to, or replacements or novations of, that document.

(i) A reference to a party to a document includes that party’s successors and permitted assignees.

(j) A promise on the part of 2 or more persons binds them jointly and severally.

(k) A reference to an agreement other than this Agreement includes a deed and any legally enforceable undertaking, agreement, arrangement or understanding, whether or not in writing.

(l) A reference to liquidation or insolvency includes appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death.

(m) No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of this Agreement or that provision.

(n) A reference to a body, other than a party to this Agreement (including an institute, association or authority), whether statutory or not:

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(1) which ceases to exist; or

(2) whose powers or functions are transferred to another body,

is a reference to the body which replaces it or which substantially succeeds to its powers or functions.

24.2 Interpretation of inclusive expressions

Specifying anything in this Agreement after the words ‘include’ or ‘for example’ or similar expressions does not limit what else is included.

24.3 Business Day

Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.

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Schedule 1

Specifications for the Services

The Specifications include the following documents:

(a) [Insert document title/reference]

(b) [Insert document title/reference]

[Describe the Services to be supplied by the Supplier in this Schedule and if other documents are relevant for describing the Services, refer to them above and attach them to this Schedule]

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Schedule 2

Service Levels

The Service Levels are set out in this Schedule and the following documents (if any):

(a) [Insert document title/reference]

(b) [Insert document title/reference]

[Specify any Service Levels that apply to the Services in this Schedule. If the Service Levels are set out in other documents, list those documents above and attach them to this Schedule]

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Signing pageSchedule 3 Signing pageSigning page

Schedule 3

Rates

All Fees and any Expenses authorised by QIMR Berghofer under this Agreement must be calculated in accordance with the Rates set out in this Schedule.

[Insert Rates]

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Signing page

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Signing page

Executed as an agreement

Signed byThe Council of the Queensland Institute of Medical Researchby its representative

sign here ►

Representative

print name

in the presence of

sign here ►

Witness

print name

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Signing page

Signed by[Supplier name]in accordance with section 127 of the Corporations Act 2001 (Cth)by

sign here ►

Company Secretary/Director

print name

sign here ►

Director

print name

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