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Equipment Purchase Agreement

The Council of The Queensland Institute of Medical Research

[Insert Supplier Name]

Contract No:

Contents

Table of contents

Part 1 3

1 Agreement Details 3

Part 2: Terms and conditions 3

1 Definitions 32 Supply of Equipment 3

2.1 Site Preparation........................................................................................................32.2 Delivery of Equipment..............................................................................................32.3 Installation of Equipment..........................................................................................32.4 Commissioning of Equipment...................................................................................32.5 Documentation.........................................................................................................32.6 Training.................................................................................................................... 3

3 Testing of Equipment 33.1 Testing by the Supplier.............................................................................................33.2 Testing by QIMR Berghofer......................................................................................33.3 Remedying any Defects identified in Acceptance Tests...........................................33.4 Equipment passes Acceptance Tests.......................................................................33.5 Equipment does not pass Acceptance Tests............................................................33.6 Effect of testing.........................................................................................................3

4 Warranty Services 35 Maintenance Services 36 Spare parts 37 Price and payment 3

7.1 When may the Supplier invoice the Purchase Price and the Maintenance Fee?......37.2 Payment by QIMR Berghofer....................................................................................37.3 No additional amounts payable................................................................................37.4 Disputed invoices.....................................................................................................37.5 Set off....................................................................................................................... 37.6 Amounts inclusive of all taxes...................................................................................3

8 Goods and Services Tax 39 Title and risk 310 Supplier’s Personnel 311 Warranties 3

11.1 Power and capacity..................................................................................................311.2 Supplier warranties...................................................................................................311.3 Assignment of manufacturers’ warranties.................................................................3

QIMRB Equipment Purchase Agreement v1 September 2018 Contents 1

Contents

12 Compliance and probity 312.1 Compliance with Laws..............................................................................................312.2 Proper conduct.........................................................................................................312.3 No Conflict of Interest...............................................................................................3

13 Work health and safety 314 Records and audit 315 QIMR Berghofer name and logo 316 Intellectual Property Rights 3

16.1 Ownership of Intellectual Property Rights.................................................................316.2 Licence to use Intellectual Property Rights...............................................................316.3 Moral rights...............................................................................................................316.4 Intellectual property warranty....................................................................................316.5 Intellectual property indemnity..................................................................................316.6 Remedial action........................................................................................................3

17 Confidentiality 317.1 Confidential information............................................................................................317.2 Permitted disclosures...............................................................................................317.3 Preventing disclosures.............................................................................................317.4 Exclusions................................................................................................................317.5 Remedies for breach................................................................................................317.6 Right to Information..................................................................................................3

18 Privacy 319 Insurance and liability 3

19.1 Insurance coverage required....................................................................................319.2 Maintaining coverage...............................................................................................319.3 Evidence of insurance and currency.........................................................................3

20 Termination and consequences 320.1 Termination of Maintenance Services without cause................................................320.2 Termination by QIMR Berghofer for cause...............................................................320.3 Termination by the Supplier for cause......................................................................3

21 Consequences of Termination 321.1 Termination for rejection of Equipment.....................................................................321.2 Other termination for cause......................................................................................321.3 Survival..................................................................................................................... 3

22 Dispute resolution 323 Assignment 324 Subcontracting 325 Notices 326 General 3

26.1 Governing law and jurisdiction..................................................................................326.2 Invalidity and enforceability......................................................................................326.3 Waiver...................................................................................................................... 3


Contents

26.4 Variation................................................................................................................... 326.5 Further action to be taken at each party’s own expense..........................................326.6 Counterparts.............................................................................................................326.7 Relationship of the parties........................................................................................326.8 Exercise of rights......................................................................................................326.9 Remedies cumulative...............................................................................................3

27 Interpretation 327.1 General..................................................................................................................... 327.2 Interpretation of inclusive expressions......................................................................327.3 Business Day............................................................................................................3

Schedule 1Specifications for the Equipment 3

Schedule 2Warranty Services 3

Schedule 3Maintenance Services 3

Signing page 3


Equipment Purchase Agreement

THIS EQUIPMENT PURCHASE AGREEMENT is made on 20 .

PARTIES

BETWEEN THE COUNCIL OF THE QUEENSLAND INSTITUTE OF MEDICAL RESEARCH (ABN 31 411 813 344), of 300 Herston Road, Herston in the State of Queensland (“QIMR Berghofer”)

AND: [INSERT SUPPLIER NAME] ([ABN/ACN] [insert]) of [insert address] (“[insert]”)

BACKGROUND

A. QIMR Berghofer is engaged in undertaking medical research activities and operations connected with those activities. QIMR Berghofer requires the Equipment in connection with QIMR Berghofer activities.

B. The Supplier is engaged in the business of supplying the Equipment, and has represented that the Equipment 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 Equipment together with any associated Services.

AGREEMENT

This agreement is comprised of:

(a) This Cover Page

(b) Part 1 – Agreement Details

(c) Part 2 - Terms and Conditions

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

The parties agree as follows:

QIMRB Equipment Purchase Agreement v1 September 2018 page 1

Part 1

1 Agreement Details

Item Issue Details

1. Equipment

(Clause 2)

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

The Equipment is further described in the Specifications, including Schedule 1.

2. Site

(Clause 2.1)

[Insert the site to which the Equipment must be delivered]

3. Site Preparation Is the Supplier required to prepare the Site prior to delivering the Equipment? Yes/No

If Yes, the Supplier must prepare the Site:

on [Insert date]; and

in accordance with the following requirements and any other requirements for site preparation set out in the Specifications:

[Insert requirements for site preparation here. If further space is required, include the requirements in a separate document to be referred to in, and attached to, Schedule 1.]

4. Delivery Date

(Clause 2.1)

[Insert date on which Supplier is to deliver the Equipment]

5. Installation

(Clause 2.3)

Is the Supplier required to install the Equipment for QIMR Berghofer at the Site? Yes/No

If Yes, the Supplier must install the Equipment at the Site:


in accordance with the following requirements and any other requirements for installation set out in the Specifications:

[Insert requirements for installation here. If further space is required, include the requirements in a separate document to be referred to in, and attached to, Schedule 1.]


11 Agreement DetailsAgreement Details

Item Issue Details

6. Commissioning

(Clause 2.4)

Is the Supplier required to commission the Equipment for QIMR Berghofer at the Site? Yes/No

If Yes, the Supplier must commission the Equipment at the Site:


in accordance with the following requirements and any other requirements for commissioning set out in the Specifications:

[Insert requirements for commissioning here. If further space is required, include the requirements in a separate document to be referred to in, and attached to, Schedule 1.]

7. Training

(Clause 2.6)

Is the Supplier required to provide training in relation to the Equipment? Yes/No

If Yes, the Supplier must provide training to QIMR Berghofer and its Personnel at the Site:



[Insert requirements for training here. If further space is required, include the requirements in a separate document to be referred to in, and attached to, Schedule 1.]

8. Supplier Acceptance Tests

(Clause 3.1)

Is the Supplier required to conduct any Acceptance Tests? Yes/No

If Yes, the Supplier must conduct and complete those Acceptance Tests:

by [Insert date]; and


[Insert requirements for Supplier Acceptance Tests here. If further space is required, include the requirements in a separate document to be referred to in, and attached to, Schedule 1.]

9. Warranty Period

(Clause 4)

The Warranty Period commences on the Warranty Period Commencement Date (see Definitions) and continues for [12 months/ or insert period].

Is the Warranty Period extended by the total number of days on which the Equipment was non-operational during the Warranty Period as a result of any Defect? Yes/No

If Yes, the Warranty Period is extended in accordance with clause 4.1(d).



Item Issue Details

10. Warranty Services The Supplier must supply Warranty Services in accordance with:

the requirements in clause 4.1(a) to 4.1(f); and

the Warranty Specifications described in Schedule 2.

Is Supplier required to conduct preventative maintenance on the Equipment as part of the Warranty Services? Yes/No

If Yes, Supplier must provide preventative maintenance services in accordance with:

clause 4.1(g); and

the Warranty Specifications described in Schedule 2.

11. Maintenance Services

(Clause 5)

Is the Supplier required to supply Maintenance Services? Yes/No

If Yes, the Supplier must supply the Maintenance Services which are described in the Maintenance Specifications in Schedule 3.

12. Maintenance Term

(Clause 5)

The Maintenance Term commences on the day after the end of the Warranty Period and continues for [24 months/ or insert period].

13. Purchase Price (for the Equipment and Delivery Services)

(Clause 7.1(a))

The total Purchase Price for the Equipment and all Delivery Services is:

[$ Insert] (excluding GST)

14. Maintenance Fee

(Clause 7.1(a))

The Maintenance Fee for all Maintenance Services is:

[$ Insert] (excluding GST) [per month/ or insert other basis for charging the Maintenance Fee]

15. QIMR Berghofer officer and address to whom invoices must be sent

(Clause 7.2(b))

Attention: [insert]

Address: [insert]

Telephone: [insert]

Facsimile: [insert]

Email: [insert]



Item Issue Details

16. Insurance

(clause 19.1)

The Supplier must maintain the following insurances as required under clause 19.1: [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.

17. Addresses for notices

(Clause 25)

QIMR Berghofer

Attention: Chief Operating Officer

Address: [insert]

Attention: [insert]

Telephone: [insert]

Facsimile: [insert]

Supplier

Attention: [insert]

Address: [insert]

Attention: [insert]

Telephone: [insert]

Facsimile: [insert]


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:

“Acceptance Notice” has the meaning given in clause 3.4.

“Acceptance Tests” means all tests required to demonstrate that the Equipment as supplied by the Supplier under this Agreement (including, if required under this Agreement, as installed and commissioned by the Supplier) meets all the requirements of the Specifications and all other requirements of this Agreement in relation to the Equipment.

"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.

"Business Day" means 8.00am to 5.00pm AEST Monday to Friday, excluding a public holiday 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.

“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 7.1 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 to the officer stated in Item 15 as authorised to receive invoices.

“Defect” means a fault, error, failure, deficiency or malfunction that causes the Equipment not to meet any part of the Specifications or any other requirements under this Agreement.



“Delivery Date” means the date for delivery of the Equipment set out in Item 4.

“Delivery Services” means all services to be supplied by the Supplier under this Agreement in connection with the delivery and verification of the Equipment, including all site preparation under clause 2.1, installation under clause 2.3, commissioning under clause 2.4, training under clause 2.6, Acceptance Testing by the Supplier under clause 3, and all Warranty Services.

“Documentation” means all documentation reasonably required to install, use and maintain the Equipment.

“Equipment” means the equipment described in Item 1 and includes any replacements or spare parts supplied by the Supplier under this Agreement.

“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.

"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.

“Maintenance Services” means all services to support and maintain the Equipment during the Maintenance Term to ensure the Equipment continues to satisfy and operate in



accordance with the Specifications, including all services specified in the Maintenance Specifications.

“Maintenance Specifications” means the description of the Maintenance Services to be supplied by the Supplier as set out in Schedule 3.

“Maintenance Term” means the period in Item 12.

“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).

“Purchase Price” means the total amount payable for the Equipment and all Delivery Services as set out in Item 13.

"Services" means all services provided, and to be provided, by the Supplier under or in connection with this Agreement, including all Delivery Services (which includes Warranty Services) and Maintenance Services.

“Site” means the Site referred to in Item 2.

“Specifications” means all specifications for the Equipment, Delivery Services and any Maintenance Services (as applicable), including:

(a) in respect of the Equipment and Delivery Services, all documents referred to in, or attached to, Schedule 1;

(b) in respect of the Warranty Services, all documents referred to, or attached to, in Schedule 2;

(c) in respect of the Maintenance Services, all documents referred to, or attached to, in Schedule 3;

(d) all of QIMR Berghofer’s requirements for the Equipment and 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

(e) 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) - (e) above, the contents of the paragraph listed higher shall apply.

“Warranty Period” means the warranty period specified in Item 9.

“Warranty Period Commencement Date” means the day after the day on which:

(a) QIMR Berghofer gives the Supplier an Acceptance Notice under clause 3.4;

(b) QIMR Berghofer waives the requirement for Acceptance Tests to be satisfactorily completed under clause 3.5(a);

(c) QIMR Berghofer accepts the Equipment under clause 3.5(b) and the parties have agreed in writing the reduced price for the Equipment under clause 3.5(b); or

(d) subject to any conditions QIMR Berghofer reasonably requires under clause 3.5(c), QIMR Berghofer conditionally accepts the Equipment under clause 3.5(c).

“Warranty Services” means all services to support and maintain the Equipment during the Warranty Period to ensure the Equipment continues to satisfy and operate in accordance with the Specifications, including all services specified in the Warranty Specifications.



“Warranty Specifications” means the description of the Warranty Services to be supplied by the Supplier as set out in Schedule 2.

“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.

2 Supply of Equipment

2.1 Site Preparation

If Item 4 states that the Supplier must prepare the Site prior to delivery of the Equipment, the Supplier must prepare the Site:

(a) at the time; and

(b) so as to meet any other requirements,

specified in Item 4.

2.2 Delivery of Equipment

The Supplier must deliver the Equipment to the Site on the Delivery Date in accordance with any requirements set out in the Specifications.

2.3 Installation of Equipment

If Item 5 states that the Supplier must install the Equipment, the Supplier must install the Equipment:




2.4 Commissioning of Equipment

If Item 6 states that the Supplier must commission the Equipment, the Supplier must commission the Equipment:




2.5 Documentation

The Supplier must supply the Documentation to QIMR Berghofer at the later of:

(a) the time the Supplier delivers the Equipment to QIMR Berghofer; or

(b) if the Supplier is required to install or commission the Equipment, the time that installation or commissioning is successfully completed,

unless QIMR Berghofer has agreed (in writing) a different time.



2.6 Training

If Item 7 states that the Supplier must supply training to QIMR Berghofer in relation to the Equipment, the Supplier must supply that training:




3 Testing of Equipment

3.1 Testing by the Supplier

(a) If Item 8 states that the Supplier must conduct Acceptance Tests on the Equipment, the Supplier must carry out those Acceptance Tests and provide to QIMR Berghofer a report about the outcomes of those Acceptance Tests:

(1) by the time; and

(2) otherwise in accordance with any other requirements,

set out in Item 8, including any specific test plans agreed by the parties in writing.

(b) QIMR Berghofer is entitled to observe and, to the extent reasonable, participate in the conduct of any Acceptance Tests performed by the Supplier.

3.2 Testing by QIMR Berghofer

(a) Whether or not the Supplier is required to conduct any Acceptance Tests, QIMR Berghofer may conduct Acceptance Tests on the Equipment. If QIMR Berghofer conducts any Acceptance Tests on the Equipment, QIMR Berghofer will provide to the Supplier a report of the outcomes of those Acceptance Tests.

(b) QIMR Berghofer may conduct any Acceptance Tests under clause 3.2(a) itself or may appoint any other person to conduct those Acceptance Tests for, or together with, QIMR Berghofer.

(c) Without limiting clause 3.2(a), the requirements for QIMR Berghofer-performed Acceptance Tests may (if applicable) be further described as attached at Schedule 1.

3.3 Remedying any Defects identified in Acceptance Tests

Where any Acceptance Tests demonstrate that the Equipment as supplied by the Supplier under this Agreement (including, if required under this Agreement, as installed and commissioned by the Supplier) fails to meet any requirements of the Specifications or any other requirements of this Agreement in relation to the Equipment, QIMR Berghofer may give the Supplier notice requiring the Supplier to remedy the Defects, in which case the Supplier must promptly remedy the Defects (at its own expense), and re-submit the Equipment to further Acceptance Testing using the process in clauses 3.1 and 3.2.

3.4 Equipment passes Acceptance Tests

If the Equipment, as supplied by the Supplier under this Agreement (including, if required under this Agreement, as installed and commissioned by the Supplier), passes all Acceptance Tests or any repeated Acceptance Tests under clause 3.3, QIMR Berghofer must give the Supplier a notice that it accepts the Equipment (Acceptance Notice).



3.5 Equipment does not pass Acceptance Tests

If the Equipment, as supplied by the Supplier under this Agreement (including, if required under this Agreement, as installed and commissioned by the Supplier), does not pass any Acceptance Tests or any repeated Acceptance Tests under clause 3.3, QIMR Berghofer may by giving notice to the Supplier:

(a) waive the requirement for the Acceptance Tests to be satisfactorily completed;

(b) accept the Equipment for a reduced Purchase Price notified by QIMR Berghofer (which reduction must be reasonable given the extent and nature of the failure to pass Acceptance Tests);

(c) conditionally accept the Equipment, subject to any conditions QIMR Berghofer may reasonably require; or

(d) as long as QIMR Berghofer has given the Supplier at least one opportunity to remedy Defects and repeat the Acceptance Tests under clause 3.3, reject the Equipment, terminate this Agreement, in which case clause 21.1 applies.

3.6 Effect of testing

The parties acknowledge and agree that any:

(a) responsibility or activity by QIMR Berghofer to review, comment on, sign-off, confirm, approve, accept, conduct Acceptance Tests on, or perform a similar act in connection with the Equipment or any Services; and

(b) such review, comment on, sign-off, confirmation, approval, acceptance, conduct of Acceptance Tests on, or similar act of QIMR Berghofer in connection with the Equipment or Services,

is a process enabling QIMR Berghofer to check whether the Equipment and Services appear to comply with this Agreement and it does not:

(c) vary the Supplier’s obligations or release the Supplier from its responsibility for performance of its obligations in accordance with this Agreement; or

(d) transfer an obligation onto QIMR Berghofer to ensure that the Equipment and Services comply with this Agreement,

and is not considered to be a waiver of QIMR Berghofer’s rights or create rights of estoppel, where the Equipment or Service is not provided in accordance with this Agreement.

4 Warranty Services

(a) During the Warranty Period, the Supplier must supply to QIMR Berghofer the Warranty Services.

(b) Without limiting any of QIMR Berghofer’s rights at law or under the Agreement, and without limiting clause 4.1(a), if at any time during the Warranty Period the Supplier becomes aware, or QIMR Berghofer advises the Supplier, of a Defect, the Supplier:

(1) must do all things necessary to promptly remedy the Defect, including in accordance with any applicable requirements in the Specifications;

(2) must provide all assistance reasonably requested by QIMR Berghofer in relation to the Defect (including by way of telephone support); and

(3) warrants that the replacement or repaired Equipment will comply with the requirements of the Specifications and this Agreement.



(c) Without limiting QIMR Berghofer’s rights under this Agreement or at law, if:

(1) the Supplier does not fully remedy any Defect in accordance with this clause 4 by the end of the Warranty Period; or

(2) there have been at least 3 Defects of the same or similar type during the Warranty Period (even if the Supplier has remedied those Defects),

QIMR Berghofer may do any of the following:

(3) require the Supplier to negotiate in good faith to agree a reduction in the Purchase Price and refund of the difference to QIMR Berghofer;

(4) require the Supplier to promptly remove the Equipment from the Site and re-supply QIMR Berghofer with new replacement Equipment;

(5) terminate this Agreement by giving notice to the Supplier, in which case clause 21.1 applies.

(d) If specified in Item 9, the Warranty Period shall be extended by the total number of days on which the Equipment was non-operational during the Warranty Period as a result of any Defect.

(e) If any software upgrade for the Equipment becomes available during the Warranty Period, Supplier must promptly arrange to make such upgrade available to QIMR Berghofer.

(f) The Supplier must fulfil all of its obligations under this clause 4 at the Supplier’s own cost. QIMR Berghofer is not liable to the Supplier for any costs, expenses or other amounts suffered or incurred by the Supplier in fulfilling its obligations under this clause 4.

(g) In addition to the Supplier’s obligations under this clause 4, if Item 9 states that the Supplier must supply preventative maintenance as part of the Warranty Services, the Supplier must supply the following services during the Warranty Period:

(1) supply the preventative maintenance services in accordance with any applicable requirements in the Specifications;

(2) conduct regular proactive inspections of the Equipment and its operation for the purpose of preventing Defects arising;

(3) notify QIMR Berghofer if any Defects or potential Defects are identified in the course of inspections contemplated under clause 4.1(g)(3); and

(4) take all steps necessary (including by providing and installing any spare or replacement parts that may be necessary) to remedy any Defects or potential Defects identified in the course of inspections contemplated under clause 4.1(g)(3).

5 Maintenance Services

If Item 11 states that the Supplier must supply Maintenance Services, the Supplier must supply the Maintenance Services:

(a) in accordance with the Maintenance Specifications; and

(b) for the Maintenance Term.



6 Spare parts

(a) The Supplier represents and warrants that if spare parts are required for the proper ongoing use and maintenance of the Equipment, the Supplier has given QIMR Berghofer notice of this (and details of the costs of those spare parts) before the date of this Agreement.

(b) If:

(1) spare parts are required for the proper ongoing use and maintenance of the Equipment; and

(2) the Supplier has not otherwise agreed to supply those spare parts to QIMR Berghofer (i.e. under the Services described in this Agreement or otherwise),

then the Supplier must:

(3) maintain a readily available stock of spare parts for at least the anticipated reasonable useful life of the Equipment; and

(4) supply those spare parts to QIMR Berghofer at a cost no greater than the costs charged to the Supplier’s other customers at any time requested by QIMR Berghofer during the anticipated reasonable useful life of the Equipment.

7 Price and payment

7.1 When may the Supplier invoice the Purchase Price and the Maintenance Fee?

(a) The parties acknowledge and agree that the:

(1) Purchase Price set out in Item 13 is the total amount payable by QIMR Berghofer for the Equipment and all Delivery Services; and

(2) Maintenance Fee set out in Item 14 is the total amount payable by QIMR Berghofer for the Maintenance Services.

(b) The Supplier may invoice QIMR Berghofer:

(1) the Purchase Price after the Warranty Period Commencement Date; and

(2) the Maintenance Fee monthly in arrears after Maintenance Services commence, or on any other basis specified in Item 14.

7.2 Payment by QIMR Berghofer

(a) QIMR Berghofer must pay the Purchase Price and the Maintenance Fee by the end of the calendar month following the calendar month in which QIMR Berghofer receives a Correctly Rendered Invoice from the Supplier for the Purchase Price or the Maintenance Fee (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 15.

(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 Equipment or Services have been supplied or accepted in accordance with this Agreement;

(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.

7.3 No additional amounts payable

(a) The Supplier acknowledges and agrees that, unless otherwise agreed in writing by QIMR Berghofer, the Purchase Price and the Maintenance Fee are the total of all amounts payable by QIMR Berghofer to the Supplier under, or in connection with, this Agreement.

(b) Without limiting clauses 4.1(f), 7.3(a) or 21.1 (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 Purchase Price and Maintenance Fee, including any amounts in relation to travel, accommodation or third party costs that may be related to the Supplier performing its obligations under this Agreement.

7.4 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.

7.5 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.

7.6 Amounts inclusive of all taxes

(a) Subject to clause 8, 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.



8 Goods and Services Tax

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

(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 8.1(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 8.1(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 8.1(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 8.1(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 8.1(d).

9 Title and risk

(a) Title in the Equipment passes to QIMR Berghofer on payment of the Purchase Price by QIMR Berghofer.

(b) Risk in the Equipment passes to QIMR Berghofer after the Equipment is unloaded and delivered inside the premises at the Site.



10 Supplier’s Personnel

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

(c) If QIMR Berghofer gives the Supplier a notice under clause 10.1(b), the Supplier must promptly cease using any Personnel notified by QIMR Berghofer under in connection with the supply of Equipment or Services under this Agreement.

11 Warranties

11.1 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.

11.2 Supplier warranties

The Supplier represents and warrants that:

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

(b) the Equipment and 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 Equipment and Services comply with the requirements of all Laws;

(d) it is not aware of any failure of the Equipment 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 Equipment and Services;

(f) without limiting the Supplier’s other obligations under this Agreement (including to supply Maintenance Services if applicable), the Documentation provided under clause 2.5 will be sufficient to enable the installation, use and maintenance of the Equipment and Services by QIMR Berghofer;

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

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

(i) the Equipment, including any replacements and spare parts supplied by the Supplier under this Agreement:

(1) is new and has not been previously installed or used; and

(2) will enable operation of the Equipment in accordance with and so as to meet the requirements of the Specifications;

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

(k) 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 Equipment and Services.

11.3 Assignment of manufacturers’ warranties

Without limiting the Supplier’s warranties and other obligations under this Agreement, the Supplier must assign to QIMR Berghofer, without additional cost, the benefit of all manufacturers’ warranties and/or service warranties granted to the Supplier by the suppliers of components of the Equipment and any services related to those components.

12 Compliance and probity

12.1 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.

12.2 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 equipment or services of a nature similar to the Equipment and 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 Equipment and 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.

12.3 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.

13 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 Equipment or 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 Equipment and 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 Equipment and Services; and

(4) following a Health and Safety Incident (which requires notification to a regulator under the WHS Laws) in connection with the Equipment or 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 13.1(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.

14 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 Equipment and Services; and

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

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

15 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 15.1(a) ceases if and when this Agreement ends or is terminated.

16 Intellectual Property Rights

16.1 Ownership of Intellectual Property Rights

This Agreement does not assign, and neither party may assert ownership of all or any part of, any Intellectual Property Rights of any person.

16.2 Licence to use Intellectual Property Rights

(a) The Supplier grants, and must procure all relevant third parties grant, QIMR Berghofer a perpetual, non-exclusive, irrevocable, royalty-free licence to exercise all Intellectual Property Rights in the Equipment, Documentation and Services as may be necessary for QIMR Berghofer to make full use of the Equipment, Documentation and Services.

(b) QIMR Berghofer may sublicense any rights granted to it under clause 16.2(a) to the extent required:

(1) for any other person to provide services to QIMR Berghofer; and

(2) to enable QIMR Berghofer to use the Equipment and Services together with other persons (for example, with other persons with whom QIMR Berghofer may conduct joint research).

16.3 Moral rights

To the extent individuals are entitled to assert any Moral Rights, in any of the Equipment or Services, the Supplier must procure from the authors of those 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.

16.4 Intellectual property warranty

The Supplier represents and warrants that:

(a) it has and will have at all relevant times, full authority to grant the licences granted under clause 16.2; and

(b) use by QIMR Berghofer of the Equipment and Services in accordance with this Agreement will not infringe the Intellectual Property Rights or Moral Rights of any person.

16.5 Intellectual property indemnity

(a) Subject to clause 16.5(b), the Supplier must indemnify QIMR Berghofer against any and all losses, damage, 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 by QIMR Berghofer of the Equipment, Documentation or Services 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 16.5(a) to the extent that the relevant IPR Claim was caused by:



(1) a modification of the Equipment, Documentation or Services that was not:

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

(B) approved by the Supplier; or

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

(2) QIMR Berghofer using the Equipment, Documentation or Services in a manner in which it was not intended or authorised by the Supplier.

16.6 Remedial action

If there is an IPR Claim, without limiting the Supplier’s obligations under clause 16.5, the Supplier must at its option either promptly:

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

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

17 Confidentiality

17.1 Confidential information

(a) 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).

(b) The obligation of confidence in this clause 17 extends to Confidential Information provided to or obtained by a party before entering into this Agreement.

17.2 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 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).



17.3 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.

17.4 Exclusions

The obligations of confidence in this clause 17 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 by the Disclosing Party or, if that is not possible, endeavour to have such Confidential Information maintained in confidence; and

(2) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and

(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.

17.5 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 17 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 17, 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 17.

17.6 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

(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.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, Equipment and Services;

(3) the commencement date of the Agreement; and

(4) the value of the Agreement.

18 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 18.1(a)



19 Insurance and liability

19.1 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 Equipment and the Supplier’s obligations under this Agreement, including as a minimum the insurances set out in Item 16.

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

19.2 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.

19.3 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.

20 Termination and consequences

20.1 Termination of Maintenance Services without cause

(a) At any time during the Maintenance Term, QIMR Berghofer may terminate this Agreement, either in whole or in respect of Maintenance 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 20.1(a), QIMR Berghofer:

(1) agrees to pay to the Supplier that proportionate part of any Maintenance Fees that applies for all Maintenance 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.

20.2 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 Maintenance Services only, by issuing a written notice to the Supplier if:

(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;

20.3 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 20.3(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 states) after receiving notice from the Supplier requiring the breach to be remedied; or

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

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

(A) QIMR Berghofer fails to pay any non-disputed 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.

(b) If the Supplier disagrees with any reasons for non-payment provided by QIMR Berghofer under clause 20.3(a)(3)(C)(i), the Supplier must notify the matter as a Dispute in accordance with clause 22.1(b), and may not terminate this Agreement during the period the Dispute is addressed under those clauses.

21 Consequences of Termination

21.1 Termination for rejection of Equipment

Without limiting any other rights QIMR Berghofer may have under this Agreement or at Law, if QIMR Berghofer terminates this Agreement under clauses 3.5(d) or 4.1(c), the Supplier must immediately (at its own cost):

(a) remove the Equipment from the Site;

(b) repay to QIMR Berghofer all amounts paid by QIMR Berghofer under this Agreement; and

(c) restore the Site and anything affected by the Equipment to the state it was in immediately before delivery of the Equipment to QIMR Berghofer.

21.2 Other 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 20.2, or the Supplier terminates this Agreement under clause 20.3:

(a) the Supplier must cease supplying any Maintenance Services that are current at that time;

(b) QIMR Berghofer must pay to the Supplier all amounts that are due and payable to the Supplier and not in dispute under this Agreement; and

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

21.3 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 6, 11, 15, 16, 17, 18, 19, 21, 22 and 23.



22 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 22.

(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 22.1(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 22.1(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 22.1(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).

(f) Except in relation to QIMR Berghofer’s right to withhold payment of disputed amounts under clause 7.4(a)(1), each party must continue performing their obligations in accordance with this Agreement during any Dispute.

(g) Subject to clause 20.3(a)(3), nothing in this clause 22 affects a party’s rights to terminate this Agreement.

23 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 23.1(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 23.1(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 23, 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.



24 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.

25 Notices

(a) All notices to be given under this Agreement must be in writing and delivered in person or by post or fax to the address for notices set out in Item 17 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

(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.

26 General

26.1 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.

26.2 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 26.2(a) does not apply where enforcement of the provision of this Agreement in accordance with clause 26.2(a) would materially affect the nature or effect of the parties’ obligations under this Agreement.



26.3 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.

26.4 Variation

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

26.5 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.

26.6 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.

26.7 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.

26.8 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.

26.9 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.

27 Interpretation

27.1 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:

(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.

27.2 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.

27.3 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.


Schedule 1

Specifications for the Equipment

The Specifications include the following documents:

(a) [Insert document title/reference]

(b) [Insert document title/reference]

[Attach all relevant Specification documents to this Schedule, including any documents that set out further requirements as per the Agreement Details at Items 1 (Equipment), 3 (Site Preparation), 5 (Installation), 6 (Commissioning), 7 (Training) and 8 (Supplier Acceptance Tests), and any additional QIMR Berghofer-performed Acceptance Tests requirements as per clause 3.2(c)]


Schedule 2

Warranty Services

The Warranty Specifications include the following documents:



[Attach all relevant Warranty Specification documents to this Schedule]

[Ensure the specifications describe what services are included (e.g. preventative maintenance), specify any important dates, specify if ongoing training is included, specify if cost of spare parts is included, specify who is permitted to perform services (e.g. accredited post-repair servicing)]


Signing pageSchedule 3

Schedule 3

Maintenance Services

The Maintenance Specifications include the following documents:



[Attach all relevant Maintenance Specification documents to this Schedule]

[Ensure the specifications describe what services are included (e.g. preventative maintenance), specify any important dates, specify if ongoing training is included, specify if cost of spare parts is included, specify who is permitted to perform services (e.g. accredited post-repair servicing)]


Signing page


Signing page

Executed as an agreement

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

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Representative

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in the presence of

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Witness

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59728917 page 35

Signing page

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

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Company Secretary/Director

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sign here ►

Director

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59728917 page 36

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