Subcontract Agreement

Transcription

1 Subcontract Agreement THIS AGREEMENT is made on the day of 20 BETWEEN MONASH UNIVERSITY (ABN: ) of Wellington Road, Clayton, Victoria 3800 (Monash) AND [ ] (Subcontractor) BACKGROUND A. Monash has entered into an agreement with the Commonwealth of Australia as represented by Cancer Australia to undertake certain research activities in relation to the Support for Cancer Clinical Trials Program (Project). B. The Subcontractor has agreed to provide the Services to Monash to conduct part of the Project under the terms and conditions of this Agreement. IT IS AGREED AS FOLLOWS: 1. Definitions and interpretation 1.1 All defined terms in the Head Agreement will have the same meaning in this Agreement. The rules of interpretation which shall be applied to this Agreement shall be the same as in the Head Agreement. 1.2 In this Agreement the following additional definitions will apply, except where the context otherwise requires: Background IP means Intellectual Property owned or controlled by a party, including Intellectual Property developed prior to or independently of this Agreement, which a party determines, in its sole discretion, to make available for the carrying out of the Services. Head Agreement means the agreement signed between Monash and Commonwealth of Australia as represented by Cancer Australia on or about 25 June 2013, a copy of which is attached as Schedule C. Insolvency Event means any of the following events: (a) a party, being an individual, commits an act of bankruptcy;

2 (b) (c) (d) (e) (f) a party becomes insolvent; a receiver, receiver and manager, administrator, controller, provisional liquidator or liquidator is appointed to a party or a party enters into a scheme of arrangement with its creditors or is wound up; a party assigns any of its property for the benefit of creditors or any class of them; an encumbrancer takes any step towards taking possession or takes possession of any assets of a party or exercises any power of sale; or a distress, attachment or other execution is levied or enforced against a party in excess of $10, Intellectual Property means all rights resulting from intellectual activity whether capable of protection by statute, common law or in equity and including copyright, discoveries, inventions, patent rights, registered and unregistered trade marks, design rights, circuit layouts and plant varieties and all rights and interests of a like nature, together with any and all documentation and materials relating to such rights and interests, but excluding moral rights and similar non-assignable rights of any person. Parties mean the parties to this Agreement and their respective successors and permitted assigns, and Party means any one of them. Project means the program of research and development set out in the Head Agreement. Project Intellectual Property means any Intellectual Property whatsoever created in the course of providing the Services under this Agreement. Services means the program of work to be performed by the Subcontractor set out in Schedule B. Term means the term of this Agreement as provided in clause In the event of any discrepancy or inconsistency between this Agreement and the Head Agreement the following order of precedence shall apply to resolve the issue: the Head Agreement; and this Agreement. 1.4 The schedules and attachments form part of this document. 1.5 Headings are for convenience only and do not alter interpretation. 2. Term of agreement The Parties agree that the term of this Agreement is the same as the term of the Head Agreement unless terminated earlier in accordance with the provisions of this Agreement. 3. Obligations of subcontractor Subcontractor Agreement July 2014 Page 2

3 3.1 Subcontractor acknowledges that Monash has signed and is bound by the Head Agreement. 3.2 Subcontractor acknowledges that it has read the Head Agreement and agrees to take all reasonable steps and do all reasonable things to ensure it is not responsible (partly or wholly) for any conduct that causes Monash to be in default of any provision in the Head Agreement and shall provide to Monash, at its request, all information and assistance relevant to the Services as may be necessary for Monash to fulfil its obligations under the Head Agreement. 3.3 Subcontractor will provide the Services in a proper and professional manner in accordance with the terms and conditions of the Head Agreement in so-far as the Head Agreement can be applied to that part of the Services. 3.4 Any and all terms, conditions, obligations and indemnities which are imposed on Monash in the Head Agreement are incorporated by reference into this Agreement and will apply to Subcontractor as if it were Monash (excepting provisions that would normally only apply to Monash as prime contractor) and Subcontractor will be accountable to Monash for any breaches of those provisions. 4. Payment 4.1 In consideration of the Subcontractor performing the Services in accordance with this Agreement, Monash will pay Subcontractor the amounts identified in item 1 of Schedule A. 4.2 Monash will be entitled to defer part or full payment of an instalment under clause 4.1 until such time as Subcontractor has completed to the reasonable satisfaction of Monash that part of the Services to which the instalment relates. 4.3 Monash will make payments to Subcontractor within 30 days of the provision of a tax invoice from Subcontractor and subject to Monash s receipt of sufficient funds from the Commonwealth of Australia as represented by Cancer Australia. 4.4 Notwithstanding clause 4.2, Monash will not be entitled to defer payment of an instalment where non-completion of part of the Services by Subcontractor is a result of a failure by Monash to provide prerequisite inputs or perform its obligations under this Agreement or the Head Agreement. 5. Ownership of Project Intellectual Property 5.1 Ownership of rights in any Background IP will remain with the contributing party. Where the Background IP is contributed by a party, the other party is licensed to use, modify or adapt that Background IP for the provision of the Services. The Subcontractor grants Monash a perpetual, irrevocable, royalty-free and licence feefree, world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce, modify, adapt, publish, perform, broadcast, communicate, commercialise and exploit the Intellectual Property in the Background IP but only in conjunction with the Project Intellectual Property. 5.2 Ownership of the Project Intellectual Property created in this Project will vest as provided for in the Head Agreement and the Subcontractor assigns any Project Intellectual Property created in the performance of the Services accordingly. Monash Subcontractor Agreement July 2014 Page 3

4 grants the Subcontractor a perpetual, irrevocable, royalty-free and licence fee-free, world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce, modify, adapt, publish, perform, broadcast, communicate, commercialise and exploit the Project Intellectual Property. 5.3 The operation of this clause 5 will survive the expiration or termination of this Agreement. 6. Publication and disclosure Publication and disclosure of any kind in relation to the Project and or the Services by either Party shall only be done as provided for in the Head Agreement. 7. Indemnity 7.1 Subcontractor agrees to indemnify (and keep indemnified) Monash, its officers, employees, and agents against all losses or liabilities incurred by Monash and all costs actually payable by Monash in relation to any claim against Monash, including legal costs, arising directly from: any breach of this Agreement; or any negligent or wrongful act, error or omission by Subcontractor, or any of its employees, agents, volunteers or subcontractors in connection with this Agreement. 7.2 Subcontractor s liability to indemnify Monash under clause 7.1 will be reduced proportionally to the extent that any negligent or wrongful act or omission or wilful misconduct on Monash s part contributed to the relevant loss, damage, expense, or liability. 8. Termination 8.1 Either party may terminate this Agreement immediately by giving notice in writing to the other party upon the other party suffering an Insolvency Event. This termination by notice does not affect any claim either party may have against the other arising out of the terms of this Agreement at the date of the termination. 8.2 Either Party (First Party) may terminate this Agreement by notice in writing to the other if the other Party commits any breach of the terms of this Agreement and that breach is not remedied within 14 days of notice in writing from the First Party requiring the breach to be remedied. 8.3 Monash may terminate or suspend this Agreement immediately in the event that the Head Agreement is terminated or suspended. 9. Dispute resolution If any dispute or difference arises in connection with this Agreement, then the Parties will negotiate in good faith to resolve it. 10. Notices Subcontractor Agreement July 2014 Page 4

5 Any notice to be given by either Party will be in writing and forwarded to the other Party either by post or facsimile transmission. The address for notices is as set out in item 2 of Schedule A or as last notified by the recipient in writing. 11. Insurance Subcontractor warrants that it has effected and will maintain adequate and appropriate insurance to cover its participation in the Project and the provision of the Services. 12. Goods and services tax (GST) For the purposes of this clause 12, the value of supplies made by each Party under this Agreement is as follows: 12.1 unless expressly stated to the contrary, the consideration to be provided for any taxable supply made by one party to the other under this Agreement has been calculated without regard to, and is exclusive of, GST; 12.2 the consideration referred to in clause 12.1 shall be increased by the amount of any GST; 12.3 the Party receiving any payment for a taxable supply under this Agreement shall provide to the Party making a payment for a taxable supply a tax invoice in respect of that payment; and 12.4 the Party receiving any payment under this Agreement for a taxable supply shall do all things necessary (including, without limitation, registering with any required Government authority) to enable the party making a payment for a taxable supply to claim any credits or other benefits under the relevant law relating to GST. 13. Miscellaneous 13.1 This Agreement is governed by the laws of the State of Victoria and the Parties submit to the non-exclusive jurisdiction of the courts of Victoria This Agreement may only be amended in writing, signed by the Parties Subcontractor may not assign the rights and obligations arising under this Agreement without the prior written consent of Monash The Parties are independent contracting parties, and nothing in this Agreement shall make any Party the agent or legal representative of the other for any purpose whatsoever, not does it grant either Party any authority to assume or to create any obligation on behalf of or in the name of the other This agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement. EXECUTED as an Agreement Subcontractor Agreement July 2014 Page 5

6 SIGNED for and on behalf of MONASH UNIVERSITY by its Authorised Officer:... (signature)... (name of authorised officer)... (date) SIGNED for and on behalf of THE SUBCONTRACTOR by its Authorised Officer:... (signature)... (name of authorised officer)... (date) Subcontractor Agreement July 2014 Page 6

7 SCHEDULE A ITEM 1: PAYMENT TO SUBCONTRACTOR Payment (GST Milestone Date Exclusive) $ $ $ $ TOTAL $ ITEM 2: NOTICES Monash University: Dr Janelle Jones ANZCHOG Wright St Clayton VIC Janelle.jones@monash.edu Subcontractor: [insert] Subcontractor Agreement July 2014 Page 7

8 SCHEDULE B SERVICES TO BE PERFORMED BY THE SUBCONTRACTOR [to be inserted] Subcontractor Agreement July 2014 Page 8

9 SCHEDULE C HEAD AGREEMENT See attached document (Standard Funding Agreement between the Commonwealth of Australia as represented by Cancer Australia and Monash University acting for the Australian and New Zealand Children s Haematology/Oncology Group).