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NSW Health Statewide Biobank

BIOBANK SERVICE AGREEMENT

CONTRACT SUMMARY

SERVICE PROVIDER NSW Health Pathology (NSWHP) ABN 49 382 586 535) of 45 Watt Street, Level 5, Newcastle, NSW 2300

NSWHP REPRESENTATIVES

[insert primary contact name and details]

Email: NSWPATHbiobanking@health.nsw.gov.au

CLIENT [insert full company name, registered number and address]

Email:

CLIENT REPRESENTATIVE

[insert Client’s primary contact name and details]

EFFECTIVE DATE [date last party signs to be inserted]

PROJECT NAME / DESCRIPTION

[to be inserted]

SERVICES As detailed in Schedule 1A

PRODUCTS As detailed in Schedule 1B (if applicable)

PRICING As detailed in Schedule 2

CLIENT EQUIPMENT As detailed in Schedule 4 (if applicable) The Client hereby appoints NSW Health Pathology to provide the Services and Products and NSW Health Pathology accepts such appointment on the terms and conditions set out in this Agreement.

This Agreement comprises:

1. this Contract Summary 2. the attached General Terms & Conditions 3. the following Schedules:

a. Schedule 1A (Services) b. Schedule 1B (Products) c. Schedule 2 (Pricing) d. Schedule 3 (Change Request Form) e. Schedule 4 (Client Equipment)

To the extent there is any conflict between the General Terms & Conditions and the Schedules, the General Terms & Conditions shall prevail.

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Executed as an Agreement.

Signed for and on behalf of NSW Health Pathology by its authorised signatory in the presence of:

Signature of witness Signature of authorised signatory

Full name of witness Full name of authorised signatory

Date:

Signed for and on behalf of the Client by its authorised signatory in the presence of:

Signature of witness Signature of authorised signatory

Full name of witness Full name of authorised signatory

Date:

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General Terms & Conditions

1. Definitions & Interpretation

1.1 In this Agreement, unless the context requires otherwise, the following definitions apply:

Applicable Laws: all laws (including laws relating to anti-bribery and anti-corruption), statutes, regulations, decisions, rulings, sanctions, governmental and regulatory policies and/or mandatory codes of practice which may from time to time be in force anywhere in the world and relevant to any rights and/or obligations under and/or the performance of this Agreement, including Data Protection Legislation and the Human Tissue Act 1983 (NSW).

Background Materials: all Materials which are in existence as at the Effective Date and owned by or licensed (other than by the Client) to NSW Health Pathology.

Business Day: Monday to Friday excluding any public holidays in NSW.

Change Order: has the meaning set out in clause 6.3.

Change Request: has the meaning set out in clause 6.2.

Client: is the party specified in the Contract Summary.

Client Default: any act or omission by the Client or failure by the Client to perform any relevant obligation, including any failure to provide Input Materials, Client Equipment and/or Samples in accordance with this Agreement.

Client Deliverables: any Deliverables in which it is intended that the Intellectual Property Rights will vest in the Client, as expressly identified in Part B of Schedule 1A, but excluding (unless expressly stated to the contrary in Part B of Schedule 1A) any Background Materials.

Client Equipment: any freezers, storage devices and other equipment supplied or to be supplied by the Client to NSW Health Pathology for storage and/or processing of the Samples or use otherwise in connection with the provision of the Services, as set out in Schedule 4, together with any other equipment which the Client loans to NSW Health Pathology from time to time in connection with this Agreement.

Client Materials: any Materials provided by the Client to NSW Health Pathology in connection with this Agreement, including any Samples and associated data, but excluding any NSW Health Pathology Materials and any Client Equipment.

Client Representative: the Client’s representative for the purpose of this Agreement, the current details of which are set out in the Contract Summary.

Client Responsibilities: the documents, materials, assistance, data and other information that the Client is required to provide in connection with the Services, as described in Part C of Schedule 1A and clause 5.

Confidential Information: all information of a confidential nature or which would be deemed confidential by a reasonable business person (however recorded and whether marked as confidential or not) belonging to a party which is disclosed to or received by the other party, whether before or after the Effective Date, directly or indirectly, in connection with the subject matter of this Agreement, including the terms of this Agreement, confidential information and know-how relating to the Services, Samples, Deliverables and/or Products and any financial, technical, operational, commercial, employee, management and other information and/or data of whatever kind (including all information relating to trade secrets, operations, processes, plans, intentions, developments, product information, know-how, designs, transactions, affairs and/or business) of the disclosing party and/or its customers, clients, suppliers and/or the parties’ associates.

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Data Protection Legislation: the Health Records and Information Privacy Act 2002 (NSW) including Health Privacy Principles, Schedule 1 in Health Records and Information Privacy Act 2002 (NSW) and the Privacy Act 1988 (Cth) and all Applicable Laws and regulations relating to the processing of personal data and privacy, including any guidance and codes of practice issued by the Australian Information Commissioner and the Information and Privacy Commission NSW.

Deliverables: the Materials which are to be created, developed and/or acquired by or on behalf of NSW Health Pathology specifically for the Client in the course of providing the Services.

Effective Date: is defined in the Contract Summary.

Force Majeure Event: any one of:

(a) war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection or military or usurped powers, martial law or confiscation by order of any government or public authority;

(b) the use or threat of unlawful violence against persons or property which does not arise out of any individual relationship between the perpetrator and the victim, or for purposes of robbery, but which is directed at victims as members of a class, race, organisation, nationality, religious or ethnic group, or which is intended to intimidate, coerce or inflict revenge upon any civilian population, government, institution or corporation; and

(c) ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel not caused by the Client or any subcontractor or any of their employees or agents.

Human Tissue Act: the Human Tissue Act 1983 (NSW) (and equivalent legislation in any other applicable territory) and all Applicable Laws, industry guidelines and/or codes of practice relating to the storage, processing and/or use of human tissue.

Input Materials: any documents, materials, assistance, data and/or other information required to be provided by the Client to NSW Health Pathology for the proper provision of the Services in accordance with this Agreement.

Insolvency Event: means in relation to a party to the Agreement, any of the following:

(a) the party informs the other party, or its creditors generally, that the party is insolvent or is unable to proceed with the Agreement for financial reasons;

(b) a trustee, receiver, receiver and manager, interim receiver, controller, administrator, custodian, sequestrator, provisional liquidator, liquidator or other person with similar power is appointed to the party;

(c) the party:

(i) becomes bankrupt or insolvent;

(ii) makes any assignment in bankruptcy or makes any other assignment for the benefit of creditors;

(iii) seeks relief from its obligations to creditors under any bankruptcy, insolvency or analogous law;

(iv) files a petition or proposal to take advantage of any act of bankruptcy or insolvency;

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(v) consents to or acquiesces in the appointment of a trustee, receiver, receiver and manager, interim receiver, controller, administrator, custodian, sequestrator, provisional liquidator, liquidator or other person with similar power of itself or of all or a portion of its assets; or

(vi) files a petition or otherwise commences any proceeding seeking any re-organisation, arrangement, composition or readjustment under any applicable bankruptcy, insolvency or analogous law affecting creditors’ rights or consents to, or acquiesces in, the filing of such a petition; or

(d) any act is done or event occurs which, under applicable law, has a similar effect to anything mentioned in paragraphs (b) or (c).

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Losses: all costs, liabilities, damages, fines, losses, and/or penalties (including all interest and reasonable legal and other professional fees, costs and expenses) of whatsoever nature or kind and whether or not the same arise during or after the Term.

Materials: documents, products, information and/or other materials in any form (including computer programs, designs, reports, specifications (including drafts), process maps, processing protocols, testing methods, test results and data).

NSW Health Pathology: is defined in the Contract Summary.

NSW Health Pathology Materials:

(a) all Background Materials; and

(b) all other Materials which are created, acquired, used and/or developed by or on behalf of NSW Health Pathology in connection with or as a result of the Services or otherwise after the Effective Date, including the Deliverables, but excluding any Client Deliverables.

NSW Health Pathology Representative: NSW Health Pathology’s representative for the purpose of this Agreement, the current details of which are set out in the Contract Summary.

Personal Data: means:

(a) any Personal Information (as defined in the Privacy Act (Cth) 1988);

(b) any health information (as defined in the Health Records and Information Privacy Act 2002 (NSW)); and

(c) any other data which relates to an individual who can be identified from that data.

Premises: the NSW Health Statewide Biobank at Level 1, Marie Bashir Building, Royal Prince Alfred Hospital, Missenden Road, Sydney, NSW 2050 and/or such other premises in NSW as are deemed suitable by NSW Health Pathology for the storage of Samples and are agreed with the Client.

Products: any consumables, devices or other goods supplied or to be supplied by NSW Health Pathology for purchase by the Client, as set out in Schedule 1B, together with any

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other products which NSW Health Pathology provides or agrees to provide to the Client from time to time.

Samples: biological or other samples that are provided by or on behalf of the Client for the purpose of providing the Services.

Services: the services to be provided by NSW Health Pathology to the Client under this Agreement, as described in Part A of Schedule 1A, including any related Deliverables, together with any other services which NSW Health Pathology provides or agrees to provide to the Client from time to time.

Term: the term of this Agreement, as set out in clause 8.1.

1.2 In this Agreement, the following rules apply:

(a) the singular includes the plural and vice versa;

(b) clause and schedule headings shall not affect the interpretation of this Agreement;

(c) references to clauses and Schedules are, unless otherwise provided, references to clauses and Schedules to this Agreement;

(d) the masculine includes the feminine and vice versa;

(e) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(f) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and

(g) any phrase introduced by the terms including, include, excluding, exclude, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. Entire Agreement

2.1 The terms of this Agreement apply to NSW Health Pathology’s provision of the Services and Products to the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 This Agreement constitutes the entire agreement between the parties in relation to its subject matter. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of NSW Health Pathology which is not set out in this Agreement.

3. Services

3.1 NSW Health Pathology shall perform the Services with reasonable skill and care, in accordance with Applicable Laws and in all material respects in accordance with Schedule 1A.

3.2 Where the Services include the storage of Samples by NSW Health Pathology, NSW Health Pathology shall store the Samples at the Premises. The Client acknowledges and agrees that NSW Health Pathology may remove Samples from the Premises for transportation to third parties for the purpose of assay or as otherwise required for the provision of the Services.

3.3 The performance of any part of the Services which relates to the storage, handling or analysis of Samples, shall be conditional upon the Samples, upon arrival at the Premises, being fit for

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purpose in accordance with the requirements of paragraph 1 of Part C of Schedule 1A and any other requirements identified in Part C of Schedule 1A.

3.4 The NSW Health Pathology Representative and the Client Representative shall meet (in person or by telephone) as reasonably required to facilitate, monitor and review the performance of this Agreement, including compliance with the Client Responsibilities and provision of the Services. NSW Health Pathology shall use reasonable endeavours to ensure that the same person acts as NSW Health Pathology Representative throughout the Term, but such representative may be replaced from time to time where reasonably necessary in the interests of NSW Health Pathology’s business. The Client shall promptly notify NSW Health Pathology if the Client Representative or their contact details have changed.

3.5 Prior to each meeting referred to in clause 3.4, the Client Representative shall notify the NSW Health Pathology Representative, and vice versa, of any problems relating to the provision of the Services or the Client Responsibilities, for discussion at such meeting. At the meeting, and without prejudice to each party’s other rights and remedies, the parties shall agree a plan to address such problems.

3.6 NSW Health Pathology shall meet any performance or delivery dates agreed with the Client in writing and any failure to do so caused by NSW Health Pathology shall be rectified by NSW Health Pathology within ten Business Days of the Client notifying NSW Health Pathology of such failure in writing. If such failure is not rectified by NSW Health Pathology within such ten Business Day period, such failure shall become a material, but remediable, breach of this Agreement by NSW Health Pathology.

4. Supply of Products

NSW Health Pathology shall supply the Products (if any) in accordance with the requirements and terms and conditions set out in Schedule 1B.

5. Client Responsibilities

5.1 The Client shall, at its own expense and in accordance with any timescales necessary to enable NSW Health Pathology to carry out its obligations under this Agreement, co-operate with NSW Health Pathology, comply with the Client Responsibilities and provide the Input Materials.

5.2 NSW Health Pathology shall work collaboratively with the Client to provide good faith recommendations and suggestions in connection with the performance of the Services, provided always that the Client shall be solely responsible for any decision to act upon the same and the consequences of doing so.

5.3 In the event of a Client Default:

(a) NSW Health Pathology shall, without limiting its other rights or remedies, have the right to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays NSW Health Pathology’s performance of any of its obligations;

(b) the parties shall co-operate in good faith with a view to remedying the Client Default as soon as practicably possible (at the Client’s cost);

(c) NSW Health Pathology shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from NSW Health Pathology’s failure or delay to perform any of its obligations pursuant to clause 5.3(a); and

(d) NSW Health Pathology shall be entitled to invoice the Client for any costs or losses sustained or incurred by NSW Health Pathology arising directly or indirectly from the Client Default, including any costs and expenses of retrieving and disposing of Samples and the Client shall pay such invoices immediately upon receipt.

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5.4 The Client shall provide the Client Equipment (if any) to NSW Health Pathology in accordance with the requirements and terms and conditions set out in Schedule 4.

6. Change control

6.1 Either party may request a change to the scope or execution of the Services by submitting a Change Request in the form set out in Schedule 3.

6.2 For the purposes of this Agreement, a "Change Request" is:

(a) a request to change (including to cease or omit) any Service or add new services to the Services; or

(b) a request to amend this Agreement or any document attached to it or referred to in this Agreement.

6.3 A Change Request shall become a "Change Order" when the Change Request is signed by the authorised representatives of both parties to signify their approval to the change. Save where otherwise stated herein, neither party shall be obliged to agree a Change Request originated by the other party. If either party is unwilling to accept a Change Request suggested by the other (or part of it) then the other party may require the disagreement to be dealt with in accordance with clause 17.

6.4 The costs of implementing a Change Order shall be borne as set out in the Change Order.

7. Charges and payments

7.1 The charges for the Services and Products (if applicable) are set out in Schedule 2.

7.2 All invoices shall be payable within 30 days of the date of invoice in full and in cleared funds, to a bank account nominated in writing by NSW Health Pathology.

7.3 All amounts payable by the Client under this Agreement are exclusive of goods and services tax, which shall be payable, where applicable, by the Client in addition. The Client shall pay all amounts due under this Agreement in full without deduction, set off or withholding except as required by law.

7.4 Without limiting any other right or remedy of NSW Health Pathology, if the Client fails to make any payment due to NSW Health Pathology by the due date for payment, the Client must pay simple interest on the unpaid amount calculated daily from the day after payment was due up to and including the day that payment is made, where interest exceeds A$20. The interest rate is determined under section 22 of the Taxation Administration Act 1996 (NSW). The appropriate interest rate is available from the NSW Office of State Revenue website at www.osr.nsw.gov.au/taxes/other/taa/rates/.

7.5 NSW Health Pathology may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by NSW Health Pathology to the Client.

8. Term and Termination

8.1 The Term of this Agreement commences on the Effective Date and continues until all the Services have been completed and all the Products supplied in accordance with the terms of this Agreement, subject to earlier termination in accordance with this clause 8 or otherwise as provided for in this Agreement.

8.2 Without prejudice to any other rights or remedies which the parties may have, the Client may terminate this Agreement in its entirety, and NSW Health Pathology may terminate this Agreement in whole or in part, in either case without liability to the other party, on giving the other written notice, which may take effect immediately, if:

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(a) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;

(b) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or

(c) the other party is subject to an Insolvency Event.

8.3 Without prejudice to any other rights or remedies which NSW Health Pathology may have, NSW Health Pathology may terminate this Agreement in whole or in part, without liability to the Client, on giving the Client written notice, which may take effect immediately:

(a) if the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default for a period of 30 days after being notified in writing to make such payment;

(b) following a Client Default;

(c) if the Client has breached any Applicable Laws and/or any ethical codes of conduct; or

(d) if the Client does anything which will or might, in the reasonable opinion of NSW Health Pathology, bring NSW Health Pathology or any of its associates into disrepute.

8.4 If the research project for which the Services are required is terminated for any reason, the Client may terminate this Agreement by giving to NSW Health Pathology in writing as much notice as is reasonably possible in the circumstances.

9. Consequences of termination

9.1 On termination or expiry of this Agreement for any reason:

(a) the Client shall immediately pay to NSW Health Pathology all of NSW Health Pathology's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, NSW Health Pathology shall submit an invoice, which shall be payable by the Client immediately on receipt;

(b) NSW Health Pathology shall (where applicable) produce a report setting out details of the Client's Samples and/or Client Equipment held by it as at the date of termination or expiry;

(c) at the Client’s sole risk and cost, the Client shall collect from the Premises or, if agreed in writing, NSW Health Pathology shall deliver to an agreed location, all of its Samples within 30 days after delivery of the report pursuant to clause 9.1(b) or by such other date agreed with NSW Health Pathology;

(d) at the Client’s sole risk and cost, the Client shall collect from the Premises or, if agreed in writing, NSW Health Pathology shall deliver to an agreed location, the Client Equipment within 30 days after the delivery of the report pursuant to clause 9.1(b) or by such other date agreed with NSW Health Pathology;

(e) if the Client fails to collect all its Samples from the Premises in accordance with clause 9.1(c), NSW Health Pathology may retrieve and dispose of the Samples as it sees fit, and until such collection or disposal, the Samples shall be stored by NSW Health Pathology at its Premises at the Client's risk and cost;

(f) if the Client fails to collect all its Client Equipment from the Premises in accordance with clause 9.1(d), NSW Health Pathology may dispose of the Client Equipment as

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it sees fit, and until such collection or disposal the Client Equipment shall be stored by NSW Health Pathology at its Premises at the Client's risk and cost; and

(g) NSW Health Pathology may charge the Client for the costs and expenses of:

(i) storing the Samples and/or the Client Equipment from the date of termination of this Agreement until collection (or delivery) of the same in accordance with clauses 9.1(c) or 9.1(d) (as applicable); and/or

(ii) retrieving and disposing of the Samples and/or Client Equipment in accordance with clauses 9.1(e) or 9.1(f) (as applicable).

9.2 The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination of this Agreement shall not be affected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.

9.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

10. Warranties and Indemnities

10.1 The Client warrants, on an ongoing basis, that it will be solely responsible for the conclusions and results of its research projects of which the Services form part.

10.2 The Client warrants, undertakes and represents that:

(a) it shall have obtained, in advance of any transfer, such consents as are necessary for the transfer to NSW Health Pathology of all Samples and data provided by the Client to NSW Health Pathology for the purposes of this Agreement (whether pursuant to the Health Records and Information Privacy Act 2002 (NSW) including Health Privacy Principles (which is Schedule 1 in Health Records and Information Privacy Act 2002 (NSW)) and the Privacy Act 1988 (Cth) and any related guidelines;

(b) at all times whilst such Samples and data are in the possession, custody or control of NSW Health Pathology pursuant to this Agreement, such consents referred to in clause 10.2(a) continue to be valid for the purposes of enabling NSW Health Pathology to lawfully carry out its obligations under this Agreement in respect of such Samples and data;

(c) at all times whilst any Client Equipment is in the possession, custody or control of NSW Health Pathology or otherwise at the Premises, all third party permissions and consents necessary to entitle NSW Health Pathology to lawfully carry out its obligations under this Agreement (including consents from the legal or beneficial owners of such Client Equipment) have been obtained and continue to be valid; and

(d) the possession and/or use of any Client Equipment by NSW Health Pathology for the purpose of fulfilling its obligations under this Agreement in accordance with the Client’s reasonable instructions and directions shall not breach any Applicable Laws (including any health and safety or environmental legislation) or otherwise invalidate the third party permissions and consents referred to in clause 10.2(c).

10.3 The Client, at all times during and after the Term, indemnifies NSW Health Pathology against all Losses suffered or incurred by NSW Health Pathology arising out of or in connection with any breach of this Agreement by the Client. The Client’s liability under this clause 10.3 is subject to the limitations of liability in clause 14.3, save that the Client’s liability in respect of its obligations under clause 11 and breach of the warranties contained in clause 10.2 shall be unlimited. Nothing in this clause shall restrict or limit NSW Health Pathology’s general

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obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.

10.4 Subject to the limitations of liability set out in clause 14, NSW Health Pathology, at all times during and after the Term, indemnifies the Client against all Losses suffered or incurred by the Client arising out of or in connection with any breach of NSW Health Pathology's obligations under clause 11, except and to the extent that such liabilities have directly resulted from the Client's instructions. Nothing in this clause shall restrict or limit the Client’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.

11. Data Protection

11.1 NSW Health Pathology shall:

(a) process the Personal Data only on behalf of the Client, only for the purposes of performing this Agreement and only in accordance with instructions contained in this Agreement;

(b) implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;

(c) notify the Client (within five Business Days) if it receives:

(i) a request from an individual to have access to that person's Personal Data; or

(ii) a complaint or request relating to the Client's obligations under the Data Protection Legislation;

(d) provide the Client with all reasonable co-operation and assistance in relation to any complaint or request made in respect of any Personal Data; and

(e) not transfer Personal Data outside Australia without the prior written consent of the Client.

11.2 The Client acknowledges that NSW Health Pathology is reliant on the Client alone for direction as to the extent NSW Health Pathology is entitled to use and process the Personal Data. Consequently, NSW Health Pathology shall be entitled to relief from liability in circumstances where an individual makes a claim or complaint in respect of NSW Health Pathology's actions, to the extent that such actions directly result from instructions received from the Client.

11.3 Each party shall require that each of its sub-contractors, comply at all times with the Data Protection Legislation and shall not perform their obligations under this Agreement in such a way as to cause either party to breach any of its obligations under the Data Protection Legislation. Each party shall immediately notify the other in the event that it becomes aware of any breach of the Data Protection Legislation by it or any of its sub-contractors in connection with this Agreement.

12. Intellectual Property Rights

12.1 All Intellectual Property Rights in the NSW Health Pathology Materials (which subsist now or may do so in future) shall be owned by NSW Health Pathology. NSW Health Pathology grants the Client a free of charge, non-transferable, revocable, non-exclusive, worldwide licence (without the right to grant sub-licences) to use the NSW Health Pathology Materials solely for the purpose of using the Deliverables and/or the Services in accordance with the provisions of this Agreement. If NSW Health Pathology terminates this Agreement pursuant to clauses 8.2 or 8.3, this licence will automatically terminate.

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12.2 All Intellectual Property Rights subsisting in the Client Materials and the Client Deliverables (which subsist now or may do so in future) shall be owned by the Client.

12.3 The Client grants NSW Health Pathology a free of charge, non-transferable, irrevocable, non-exclusive, worldwide licence (without the right to grant sub-licences) to use the Client Materials and the Client Deliverables solely for the purpose of providing the Services and performing its obligations in accordance with this Agreement.

12.4 The Client shall, at the Client’s own cost and expense, promptly do or procure to be done all such further acts and things (including the execution of documents) as NSW Health Pathology may reasonably require in order to give full effect to this clause 12 and/or in order to maintain the validity and enforceability of any Intellectual Property Rights owned by NSW Health Pathology.

13. Confidentiality

13.1 Each party shall keep the other party's Confidential Information confidential and shall not use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement, or disclose such Confidential Information to any third party, other than to its representatives who need to know such Confidential Information and provided that it remains responsible for such persons' compliance with this clause 13.

13.2 The obligations in this clause do not apply to any information that:

(a) is or becomes generally available to the public (other than as a result of a breach by the receiving party of this clause 13);

(b) was, is or becomes available to the receiving party from a person who, to the receiving party's knowledge, is not bound by any relevant obligations of confidentiality; or

(c) is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.

13.3 The provisions of this clause 13 shall continue to apply after expiry or termination of this Agreement.

14. Limitation of Liability and Insurance

14.1 This clause 14 sets out the entire financial liability of NSW Health Pathology to the Client (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:

(a) any breach of this Agreement;

(b) any use made by the Client of the Services, the Products, the Deliverables, the NSW Health Pathology Materials and/or any part of them; and

(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

The Client’s attention is also drawn to the limitations of liability set out in paragraph 1(e) of Part C of Schedule 1A and in paragraph 4 of Schedule 4.

14.2 Subject to clause 14.4, NSW Health Pathology's total aggregate liability under or in connection with this Agreement in contract, tort (including negligence) or for breach of statutory duty, misrepresentation, restitution or otherwise, shall in all circumstances be limited to NSW Health Pathology’s total charges for the Products and Services provided in the 12 months prior to the date on which the circumstances giving rise to the claim arose or, if less

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than 12 months of the Term of this Agreement have elapsed, to the total reasonably foreseeable charges for the Products and Services which would have been incurred during the first 12 months of the term of this Agreement.

14.3 Notwithstanding any other term of this Agreement, subject to clauses 10.3 and 14.4 and save where expressly stated otherwise, neither party shall be liable in contract, tort (including negligence) or restitution or for breach of statutory duty or misrepresentation or otherwise for any indirect, special or consequential losses, direct and indirect loss or depletion of profits, revenue, opportunity, anticipated savings, business, contracts and/or goodwill, pure economic loss, costs, damages, charges or expenses, loss of use, loss or corruption of data or information or similar arising out of or in connection with this Agreement. For the avoidance of doubt, payment for the Services and Products pursuant to this Agreement shall not be regarded as the excluded heads of loss identified above for the purpose of this clause.

14.4 Nothing in this Agreement limits or excludes the liability of either party:

(a) for death or personal injury resulting from its negligence;

(b) for any damage or liability as a result of its fraud or fraudulent misrepresentation; or

(c) which cannot be excluded by law.

14.5 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

14.6 The limitations of liability in this clause 14 are considered by both parties to be reasonable in all the circumstances. The Client acknowledges and agrees that the Client is responsible for obtaining and maintaining insurance cover to the extent required in respect of the Client’s risk and exposure under this Agreement.

15. Force majeure

15.1 A party shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under it (other than a payment obligation) if such a breach, delay or failure results from a Force Majeure Event beyond that party’s reasonable control, provided that, upon the occurrence of such a Force Majeure Event, the party prevented from performing its obligations (the prevented party) shall:

(a) immediately notify the other party, specifying the nature and the extent of the Force Majeure Event; and

(b) use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations and to recommence full performance of this Agreement as soon as reasonably practicable.

15.2 If a Force Majeure Event prevents, hinders or delays the prevented party’s performance of its obligations for a continuous period of more than eight weeks, the other party may terminate this Agreement immediately by giving written notice to the prevented party.

16. Assignment and sub-contracting

16.1 Either party may assign, transfer or deal in any other manner with all or any of its rights or obligations under this Agreement with the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

16.2 NSW Health Pathology may sub-contract all or part of the Services, subject to NSW Health Pathology remaining responsible for the acts and omissions of its sub-contractors.

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17. Dispute Resolution

17.1 The parties shall negotiate in good faith and shall use their respective reasonable endeavours to resolve all disputes arising out of or in connection with this Agreement on an amicable basis. If the parties are unable to resolve any dispute within 15 Business Days, a mediator may be appointed by the President of the NSW - Sydney Chapter of the Resolution Institute (or the person acting in that position at the time). If the matter is not referred to mediation (or the dispute is not otherwise resolved within 15 Business Days), either party shall be entitled to pursue the dispute through the courts.

17.2 Nothing in this clause 17 shall prevent the parties from seeking from any court of competent jurisdiction an interim order restraining the other party from doing any act or compelling the other party to do any act.

18. Notices

18.1 Any notice given by a party under or in connection with this Agreement shall be in writing and shall be delivered by email, by hand or by pre-paid first-class post or other next working day delivery service to the other party’s address as stated in the Contract Summary or such other address as notified to it (in accordance with this clause) from time to time.

18.2 Notices shall be deemed to have been delivered:

(a) at the time of delivery where delivered by hand;

(b) two Business Days after the date of posting where sent by domestic post; and

(c) one Business Day after transmission in the case of email (provided that no delivery failure notification is received by the sender).

Where deemed delivery would be outside of business hours (meaning between 9.00am and 5.00pm on a Business Day), delivery shall instead be deemed at 9.00am on the next Business Day.

19. Anti-Bribery

19.1 Each party must comply with the requirements of NSW Health Pathology's Business Ethics Statement available at http://www.services.nsw.gov.au/about-us/business-ethics.

19.2 If the Client, or any of its officers, employees, agents or subcontractors, is found to have:

(a) offered any inducement or reward to any public servant or employee, agent or subcontractor of NSW Health Pathology or the NSW Government in connection with the Agreement;

(b) committed corrupt conduct in the meaning of the Independent Commission Against Corruption Act 1988 (NSW);

(c) a record or alleged record of unethical behaviour, or not complied with the requirements of NSW Health Pathology's Business Ethics Statement; or

(d) improper conflicts of interest by the Client,

NSW Health Pathology reserves the right to terminate the Agreement (in which case clause 14.5 will apply).

19.3 NSW Health Pathology may, in its discretion, invite the Client to provide comments within a specified time before NSWHP terminates this Agreement on the basis of this clause.

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20. General

20.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver or abandonment of that or any other right or remedy, nor shall it preclude or restrict the further exercise by such party of that or any other right or remedy. No exercise or partial exercise by such party of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy by such party.

20.2 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part- provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

20.3 If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.

20.4 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party (except as may be expressly provided), nor authorise either party to make or enter into any commitments for or on behalf of the other.

20.5 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement is not subject to the consent of any person that is not a party to this Agreement.

20.6 This Agreement may not be varied except by an agreement in writing expressed to vary this agreement signed by duly authorised representatives of the parties (including a Change Order).

21. Governing Law and Jurisdiction

21.1 This Agreement and any dispute or claim arising out of or in connection with it, its subject matter or formation (including non-contractual disputes and claims) shall be governed by and construed in accordance with the laws of New South Wales.

21.2 The parties irrevocably agree that the courts of New South Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement, its subject matter or formation (including non-contractual disputes and claims).

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Schedule 1A

Services

Part A: Services

[To be populated]

The Client acknowledges that the Services described above are the full extent of the Services to be provided by NSW Health Pathology pursuant to this Agreement. If additional services are required, beyond those specified, these may be requested by following the change procedure set out at clause 6 of the General Terms & Conditions.

Part B: Client Deliverables

[To be populated]

Part C: Client Responsibilities

1. Where the Services include the storage, handling or analysis of Samples, the Client shall:

(a) ensure that the Samples are securely and properly packed, clearly labelled and identifiable, in such condition so as not to cause damage or injury (whether by leakage or otherwise), and in such condition as is required to enable NSW Health Pathology to perform the Services and otherwise carry out its obligations under this Agreement;

(b) ensure that the data provided to NSW Health Pathology in relation to the Samples and the participants who provided the Samples is complete and accurate;

(c) collect the Samples and accompanying data in accordance with all Applicable Laws (including those applicable in the Client's local jurisdiction and the jurisdictions in which the Samples and accompanying data are collected). In particular, the Client shall ensure that appropriate consents as required by Data Protection Legislation and the Human Tissue Act 1983 (NSW) are obtained from each participant in respect of the use of their Samples for all purposes envisaged by this Agreement (including assaying of their Samples by NSW Health Pathology and its sub-contractors). The Client shall promptly provide NSW Health Pathology with evidence of all consents upon request;

(d) ensure that the Samples are fit for the purpose of this Agreement on arrival at the Premises. The Client acknowledges that NSW Health Pathology reserves the right to dispose of any Samples which NSW Health Pathology reasonably considers to be unfit for their intended purpose, provided that NSW Health Pathology shall consult with the Client in advance of any such disposal and consider the Client’s reasonable representations in respect of the same;

(e) be responsible for obtaining and maintaining appropriate insurance cover in respect of the Samples. NSW Health Pathology shall have no liability in respect of any loss of or damage to Samples in transit (to or from the Premises) or in respect of non-delivery of Samples. NSW Health Pathology shall have no liability in respect of any loss of or damage to Samples whilst at the Premises or any third party premises, save to the extent that such loss or damage is a direct result of NSW Health Pathology’s negligence and/or wilful misconduct.

[insert other obligations of the Client beyond those specified in General Terms & Conditions.]

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Schedule 1B

Products

In this Agreement, “Products” includes [list any consumables, devices or other goods to be purchased by the Client from NSW Health Pathology].

If NSW Health Pathology shall supply Products to the Client pursuant to this Agreement, the following provisions shall apply:

1. Risk and Title

1.1 Risk in the Products shall pass to the Client on delivery (or attempted delivery) to the agreed delivery address, unless the Client is responsible for collecting the Products, in which case risk in the Products shall pass to the Client at the time they are made available for collection by the Client (and the Client shall be solely responsible for any damage caused to the Products in transit).

1.2 NSW Health Pathology shall have no liability in respect of any loss of or damage to Products in transit (where NSW Health Pathology is responsible) or for any non-delivery of Products unless the Client notifies NSW Health Pathology of such loss or damage in writing within 48 hours from delivery, or (in the case of non-delivery) within 48 hours from the time when the Products would have been delivered in the ordinary course.

1.3 Title to Products shall not pass to the Client until NSW Health Pathology has received payment in full (in cleared funds) for such Products and all other sums which are due to NSW Health Pathology from the Client under this Agreement.

1.4 Until title to Products has passed to the Client, the Client shall:

(a) store such Products separately from all other goods held by the Client so that they remain readily identifiable as NSW Health Pathology’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to such Products; and

(c) maintain such Products in satisfactory condition and keep them insured for their full price against all risks,

but the Client may resell or use Products in the ordinary course of its business.

1.5 If, before title to Products passes to the Client, the Client becomes subject to an Insolvency Event then, provided that such Products have not been resold and without limiting any other right or remedy NSW Health Pathology may have, NSW Health Pathology may at any time require the Client to deliver up such Products and, if the Client fails to do so promptly, enter any premises of the Client or of any third party where the relevant Products are stored in order to recover them.

2. Product Warranty

2.1 The Client acknowledges and agrees that NSW Health Pathology is not the manufacturer of the Products and accordingly, if there is a defect in the materials or workmanship of the Products, the Client shall be entitled to the benefit of any such warranty and/or guarantee as is given by the manufacturer or supplier to NSW Health Pathology in relation to such Products (Manufacturer Warranty) to the extent that they are assignable by NSW Health Pathology to the Client. NSW Health Pathology shall, upon request, use reasonable endeavours to assist the Client in making any claim against the manufacturer or supplier under the Manufacturer Warranty. To the extent that the Manufacturer Warranty is not assignable to the Client, NSW Health Pathology shall use reasonable endeavours to enforce the Manufacturer Warranty in accordance with any reasonable directions of the Client.

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2.2 The Client acknowledges that, in order to make a claim under the Manufacturer Warranty, it must comply with any conditions of the Manufacturer Warranty, which may, amongst other things, require the Client to give notice in writing of the defects and/or return such Products to the manufacturer’s place of business.

2.3 To the extent that the Manufacturer Warranty is invalid or has expired as a result of any default or delay on the part of NSW Health Pathology which is not caused by any default or delay on the part of the Client, NSW Health Pathology shall, at its option, subject to clause 2.4, repair or replace any Products which would otherwise have been subject to the Manufacturer Warranty or refund the Price of such Products, provided that:

(a) the Client gives notice in writing within a reasonable time of discovery that some or all of the Products do not comply with the Manufacturer Warranty;

(b) NSW Health Pathology is given a reasonable opportunity of examining such Products; and

(c) the Client (if asked to do so by NSW Health Pathology) returns such Products to NSW Health Pathology's place of business,.

2.4 NSW Health Pathology shall have no liability under clause 2.3 if:

(a) the Client makes any further use of such Products after giving a notice in accordance with paragraph 2.3(a);

(b) the defect arises because the Client failed to follow NSW Health Pathology's oral or written instructions as to the storage, installation, use or maintenance of the Products or (if there are none) good trade practice;

(c) the defect arises as a result of NSW Health Pathology following any specification supplied by the Client;

(d) the Client alters or repairs such Products without the prior written consent of NSW Health Pathology; and/or

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions.

2.5 Except as provided in this paragraph 2, NSW Health Pathology shall have no liability to the Client in respect of any defects relating to the Products.

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Schedule 2

Pricing

[To be populated]

1. NSW Health Pathology reserves the right to increase its standard charges and rates no more frequently than once in any 12 month period. Each such increase shall not exceed:

(a) the percentage increase in the Consumer Price Index (All groups CPI) published by the Australian Bureau of Statistics or its successor from time to time for the period of 12 months ending in the month prior to the month in which the increase takes effect; or

(b) 3%, whichever is greater.

2. Notwithstanding paragraph 1 above, if, in order to provide the Services, NSW Health Pathology has to meet the cost of an unavoidable external price increase made after the date of this Agreement, NSW Health Pathology shall be entitled to increase the Charges accordingly provided that, on request from the Client, it can demonstrate evidence of the price increase and the measures it has taken to keep the increase in charges to a minimum.

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Schedule 3

Change Request Form

Project title (if applicable):

Date Raised: Required by Date:

Raised by: [NSW Health Pathology / Client name]

Detailed description of proposed change and details of any related changes to this Agreement:

[Please summarise:

a) Services to be affected by the proposed change;

b) Any other areas of this Agreement to be affected by the proposed Change.]

Proposed adjustment to the charges resulting from the contract change:

Details of proposed one-off additional charges and means for determining these (e.g. fixed price or cost-plus basis):

Details of any proposed amendments to the Agreement:

[Please specify clauses of this Agreement to be amended and proposed amendments]

Details of any operational service impact:

[Please specify any systems or operations which will be affected by the proposed Change]

Reasons for and benefits and disadvantages of requested contract change:

Recommendations:

[Please specify action required as a result of Change request]

Signed by [insert name]

………………………………………………………

for and on behalf of NSW HEALTH PATHOLOGY LIMITED

Position:

Date:

Signed by [insert name]

………………………………………………………

for and on behalf of [CLIENT]

Position:

Date:

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Schedule 4

Client Equipment

In this Agreement, “Client Equipment” includes [list any freezers, storage devices and other equipment to be loaned to NSW Health Pathology by the Client in connection with the provision of the Services]

OR if no Client Equipment is to be provided under this Agreement, specify: “Not applicable” and delete remainder of this Schedule 4]

If the parties have agreed the Client shall provide Client Equipment to NSW Health Pathology for storing and/or processing the Samples or otherwise for use in connection with the provision of the Services, the following provisions shall apply:

1. Delivery and Acceptance

1.1 At the Client’s sole risk and cost, the Client shall deliver to the Premises or, if agreed in writing, NSW Health Pathology shall collect from an agreed location, the Client Equipment on an agreed date [which shall be no later than [date]].

1.2 Notwithstanding paragraph 3.1 below, upon delivery of the Client Equipment to the Premises, NSW Health Pathology shall conduct the following checks upon the Client Equipment. If NSW Health Pathology collects the Client Equipment, such checks shall be performed upon collection and again upon arrival at the Premises. NSW Health Pathology shall be entitled to reject delivery (or refuse collection) of the Client Equipment if any of the Client Equipment does not pass these checks.

[PLEASE INSERT LIST OF CHECKS TO BE CARRIED OUT OR IF YOU PREFER THIS CAN BE ADDED AS A SEPARATE APPENDIX]

2. NSW Health Pathology’s obligations

2.1 During the period for which the Client Equipment is required for performance of the Services, NSW Health Pathology shall:

(a) keep the Client Equipment at the Premises;

(b) subject to paragraph 3.1 below, use the Client Equipment to store or process the Samples (as applicable) or otherwise in connection with the provision of the Services in preference to any other similar equipment. NSW Health Pathology shall not use the Client Equipment for the benefit of any third parties or for any other purpose without the Client’s prior written consent;

(c) conduct the checks listed below on a [daily basis]:

[PLEASE INSERT THE CHECKS TO BE CARRIED OUT BY NSWHP ON A DAILY BASIS OR AT OTHER AGREED INTERVALS]

(d) inform the Client if it becomes aware (as a result of the checks carried out pursuant to paragraph 2.1(c) or otherwise) that there is a fault with the Client Equipment which, in the sole opinion of NSW Health Pathology, is likely to damage the Samples or otherwise disrupt the provision of the Services. The Client shall be solely responsible for taking any necessary remedial action as a result of such information;

(e) permit the Client and/or its third party maintenance personnel to access the Client Equipment at the Premises on reasonable advance notice during business hours (or as soon as reasonably practicable in cases of emergency) in order to inspect, replace, remove, repair and/or maintain the Client Equipment; and

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(f) ensure that the Client Equipment is kept and used in accordance with the Client’s reasonable instructions and connected to such utilities supplies as are necessary for the proper use of such Client Equipment in connection with the provision of the Services.

2.2 Subject to fair wear and tear and save for any faults or other malfunctions communicated to the Client in accordance with paragraph 2.1(d) above (and without prejudice to clause 9.1(f) of the General Terms & Conditions and paragraph 3.2(f) below), NSW Health Pathology shall use reasonable endeavours to ensure that upon being made available for collection by or re- delivery to the Client, the Client Equipment is in materially the same condition as it was upon its arrival at the Premises.

3. Client Obligations

3.1 The performance of any part of the Services which relates to or requires the use of Client Equipment, shall be conditional upon the Client (at no cost to NSW Health Pathology) providing to NSW Health Pathology Client Equipment which is fit for purpose and maintaining the same in good working order in accordance with the requirements identified in this Schedule 4.

3.2 The Client shall:

(a) ensure that the Client Equipment is securely and properly packed for delivery to the Premises, clearly labelled and identifiable, in such condition so as not to cause damage or injury, whether during transit or installation or once in situ;

(b) be solely responsible for ensuring that, upon delivery to the Premises, the Client Equipment is in good condition and working order and is fit for the intended purpose;

(c) provide NSW Health Pathology with clear, complete and accurate operational instructions relating to the Client Equipment upon delivery to the Premises and shall from time to time provide such further directions and/or training as requested by NSW Health Pathology or required for the proper and safe use of the Client Equipment;

(d) ensure that the Client Equipment complies with all Applicable Laws and that use of the Client Equipment by NSW Health Pathology in accordance with the Client’s instructions and directions shall not breach any Applicable Laws (including any health and safety or environmental legislation);

(e) promptly repair and/or replace faulty, defective and/or unsuitable Client Equipment during the Term (whether identified as a result of a communication from NSW Health Pathology or otherwise); and

(f) if NSW Health Pathology informs the Client that any Client Equipment requires replacing or has become obsolete, promptly collect from the Premises (or, if agreed with NSW Health Pathology, accept delivery of) such Client Equipment. Failure to do so may result in NSW Health Pathology disposing of such Client Equipment and/or charging the Client for the disposal and/or continued storage of such Client Equipment.

3.3 The Client shall, at all times during and after the Term, indemnify NSW Health Pathology and keep NSW Health Pathology indemnified on demand against all Losses suffered or incurred by NSW Health Pathology arising out of or in connection with:

(a) any claim or action (including any claim relating to personal injury or property damage) brought against NSW Health Pathology arising out of or in connection with the possession, transit and/or use of the Client Equipment; and/or

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(b) any damage to any physical property of NSW Health Pathology (including the Premises) arising out of or in connection with the possession, transit and/or use of the Client Equipment,

in each case, save to the extent that such Losses or damage are a direct result of NSW Health Pathology’s negligence or wilful misconduct.

4. Risk and Title

4.1 The Client Equipment shall be provided by the Client to NSW Health Pathology at the Client’s risk and the Client shall be responsible for obtaining and maintaining appropriate insurance cover in respect of the same. NSW Health Pathology shall have no liability in respect of any loss of or damage to the Client Equipment at any time, whether during transit (to or from the Premises), installation or removal or when in situ, save to the extent that such loss or damage is a direct result of NSW Health Pathology’s negligence or wilful misconduct.

4.2 The Client acknowledges that in respect of any Samples (and any other materials) stored in and/or processed using the Client Equipment, NSW Health Pathology shall have no liability in respect of any loss of or damage to any Samples (and/or other materials) resulting from the use of the Client Equipment (including as a result of a fault in the Client Equipment and/or NSW Health Pathology following the Client’s instructions), save to the extent that such loss or damage is a direct result of NSW Health Pathology’s negligence or wilful misconduct.

4.3 Title to the Client Equipment shall at all times remain with the Client. Whilst the Client Equipment remains in NSW Health Pathology’s possession, NSW Health Pathology shall:

(a) ensure that the Client Equipment remains readily identifiable as the Client's property; and

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Client Equipment.