Subcontract Agreement THIS AGREEMENT is made on the day of 20 BETWEEN MONASH UNIVERSITY (ABN: 12 377 614 012) of Wellington Road, Clayton, Victoria 3800 AND (Monash) CANTEEN THE AUSTRALIAN ORGANISATION FOR YOUNG PEOPLE LIVING WITH CANCER (ABN: 77 052 040 516) of Level 11, 130 Elizabeth Street, Sydney NSW 2000 AND [insert] (CanTeen) (Subcontractor) BACKGROUND A. Monash has entered into an agreement with the Commonwealth of Australia as represented by Cancer Australia to undertake the Project, comprising certain research activities in relation to the Support for Cancer Clinical Trials Program. B. Canteen s mission is to optimise the health and wellbeing of all young people living with cancer. As part of its mission, Canteen has agreed to jointly fund certain research activities in relation to the Project. C. The Subcontractor has agreed to provide the Services to Monash and Canteen 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. CanTeen Head Agreement means the agreement signed between CanTeen and the Commonwealth of Australia as represented by the Department of Health on 18 July 2013, a copy of which is attached as Schedule D. Head Agreement means the agreement signed between Monash and the 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) (b) (c) (d) (e) (f) a party, being an individual, commits an act of bankruptcy; 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 $10,000.00. 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 2. Subcontractor Agreement March 2011 Page 2
1.3 In the event of any discrepancy or inconsistency between this Agreement and the Head Agreement or the CanTeen Head Agreement the following order of precedence shall apply to resolve the issue: 1.3.1 the Head Agreement or the CanTeen Head Agreement, as applicable; and 1.3.2 this Agreement. 1.4 The schedules and attachments form part of this Agreement. 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 or a shorter term is specified in this Agreement. 3. Obligations under the Head Agreement and the CanTeen Head Agreement 3.1 Each Party acknowledges that Monash has signed and is bound by the Head Agreement and CanTeen has signed and is bound by the CanTeen Head Agreement. 3.2 Each Party acknowledges that it has read the Head Agreement and the CanTeen 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 or CanTeen to be in default of any provision in the CanTeen Head Agreement and shall provide to Monash and CanTeen, at their request, all information and assistance relevant to the Services as may be necessary for Monash to fulfil its obligations under the Head Agreement or for CanTeen to fulfil its obligations under the CanTeen Head Agreement. 3.3 The Subcontractor will provide the Services in a proper and professional manner in accordance with the terms and conditions of this Agreement and 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 the Subcontractor as if it were Monash (excepting provisions that would normally only apply to Monash as prime contractor) and the Subcontractor will be accountable to Monash for any breaches of those provisions. 3.5 The terms, conditions, obligations and indemnities which the Head Agreement or the CanTeen Head Agreement requires a subcontract made under either of them to contain are incorporated by reference into this Agreement and the Subcontractor will be accountable to Monash for any breaches of those provisions. 3.6 The Subcontractor: 3.6.1 consents to the disclosure of its identity to the Commonwealth of Australia as represented by the Department of Health; and Subcontractor Agreement March 2011 Page 3
4. Payment 3.6.2 acknowledges that it may be considered an Agency service provider for the purposes of the Ombudsman Act 1976 and subject to investigation by the Ombudsman under that Act and that the Commonwealth of Australia will not be liable for the cost of any such investigation by Ombudsman in connection with this Agreement or the provision of the Services. 4.1 In consideration of the Subcontractor performing the Services in accordance with this Agreement, Monash and CanTeen will pay the Subcontractor the amounts identified in item 1 of Schedule A. For the avoidance of doubt, Monash will pay the Subcontractor those amounts in Item 1 of Schedule A referred to as From Monash and CanTeen will pay the Subcontractor those amounts in Item 1 of Schedule A referred to as From CanTeen. 4.2 Monash and CanTeen will each be entitled to defer part or full payment of an instalment it is required to pay under clause 4.1 until such time as the Subcontractor has completed that part of the Services to which the instalment relates to the reasonable satisfaction of Monash and/or CanTeen (as applicable). 4.3 Monash and CanTeen will each make the payments it is responsible for to the Subcontractor within 30 days of the provision of a tax invoice from the Subcontractor. Notwithstanding the previous sentence, Monash s payment will always be subject to Monash s receipt of sufficient funds from the Commonwealth of Australia as represented by Cancer Australia and CanTeen s payment will always be subject to CanTeen s receipt of sufficient funds from the Commonwealth of Australia as represented by the Department of Health. 4.4 Notwithstanding clause 4.2, Monash or CanTeen will not be entitled to defer payment of an instalment where non-completion of part of the Services by the Subcontractor is a result of a failure by Monash or CanTeen to provide prerequisite inputs or perform its obligations under this 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, each other Party is licensed to use, modify or adapt that Background IP for the provision of the Services. The Subcontractor grants each of Monash and CanTeen a perpetual, irrevocable, royaltyfree and licence fee-free, world-wide, non-exclusive licence (including a right of sublicence) 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 in Monash and the Subcontractor assigns all rights in any Project Intellectual Property created in the performance of the Services accordingly. Monash grants each of the Subcontractor and CanTeen 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 Project Intellectual Property. Subcontractor Agreement March 2011 Page 4
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 a Party shall only be done with the written consent of all Parties and in accordance with any requirements provided for in the Head Agreement or the CanTeen Head Agreement. The Parties agree that this will require acknowledgment of the financial support provided by CanTeen in accordance with the terms of the CanTeen Head Agreement. 7. Indemnity 7.1 The Subcontractor agrees to indemnify (and keep indemnified) each of Monash and CanTeen (each an Indemnified Party), its officers, employees, and agents against all losses or liabilities incurred by the Indemnified Party and all costs actually payable by the Indemnified Party in relation to any claim against the Indemnified Party, including legal costs, arising directly from: 7.1.1 any breach of this Agreement; or 7.1.2 any negligent, fraudulent or wrongful act, error or omission by the Subcontractor, or any of its employees, agents, volunteers or subcontractors in connection with this Agreement. 7.2 The Subcontractor s liability to indemnify an Indemnified Party under clause 7.1 will be reduced proportionally to the extent that any negligent, fraudulent or wrongful act or omission or wilful misconduct on the Indemnified Party s part contributed to the relevant loss, damage, expense, or liability. 8. Termination 8.1 A Party may terminate this Agreement immediately by giving notice in writing to the other Parties upon any Party suffering an Insolvency Event. This termination by notice does not affect any claim a Party may have against any other Party arising under or in connection with the terms of this Agreement at the date of the termination. 8.2 A Party (First Party) may terminate this Agreement by notice in writing to the other Parties if the either of the other Parties commits any breach of the terms of this Agreement and that breach is either not capable of remedy or is not remedied within 14 days of receiving 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. CanTeen s obligations will terminate immediately if the CanTeen Head Agreement is terminated or suspended, unless CanTeen notifies the other Parties otherwise. 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. Subcontractor Agreement March 2011 Page 5
10. Notices Any notice to be given by any Party must be in writing and forwarded to the other Party or Parties either by post, facsimile transmission or email. The address for notices is as set out in item 2 of Schedule A or as last notified by a Party to the other Parties in writing. 11. Insurance The 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 a Party to another Party 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 a 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 a 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. 13.2 This Agreement may only be amended in writing, signed by the Parties. 13.3 The Subcontractor may not assign its rights and obligations arising under this Agreement without the prior written consent of Monash and CanTeen. 13.4 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 any Party any authority to assume or to create any obligation on behalf of or in the name of any other Party. 13.5 This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement. 13.6 This Agreement may be executed in any number of counterparts, all of which taken together will constitute one and the same instrument. Subcontractor Agreement March 2011 Page 6
EXECUTED as an Agreement SIGNED for and on behalf of MONASH UNIVERSITY by its Authorised Officer: (signature) (name of authorised officer) (date) SIGNED for and on behalf of CANTEEN THE AUSTRALIAN ORGANISATION FOR YOUNG PEOPLE LIVING WITH CANCER 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 March 2011 Page 7
SCHEDULE A ITEM 1: PAYMENT TO SUBCONTRACTOR Milestone Date Payment (GST Exclusive) From Monash From CanTeen Subtotal Total payment (GST exclusive) ITEM 2: NOTICES Monash University: CanTeen: Dr Janelle Jones ANZCHOG 27-31 Wright St Clayton VIC 3168 Email: Janelle.jones@monash.edu Mr Peter Orchard CanTeen Australia Level 11, 130 Elizabeth Street Sydney NSW 2000 Email: peter.orchard@canteen.org.au Subcontractor: [insert] Subcontractor Agreement March 2011 Page 8
SCHEDULE B SERVICES TO BE PERFORMED BY THE SUBCONTRACTOR Subcontractor Agreement March 2011 Page 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). Subcontractor Agreement March 2011 Page 10
SCHEDULE D CANTEEN HEAD AGREEMENT See attached document (Standard Funding Agreement between the Commonwealth of Australia as represented by the Department of Health and CanTeen Australia). Subcontractor Agreement March 2011 Page 11