Snow Medical Research Foundation Limited ABN 27 000 000 000 of Xxxxx 0, 00 Xxxxxxxx Xxxxxx, Xxxxx Offices – West, Xxxxxxxx Xxxxxxx, XXX 0000 (Snow Medical)
[Name, ABN and registered address of university or MRI] (Host Organisation)
The parties agree to conduct the Grant Activities on the terms set out below in the Details and in the attached document headed ‘General Terms’. The Details, General Terms and Annexures form part of this agreement.
[insert date no later than 31 March 2022]
Agreement End Date
[insert date 5 years after Commencement Date] subject to any Extension approved by Snow Medical in accordance with clauses 3.5 and 3.6
[Name of fellow]
[Project title] as detailed in Annexure 1
$[insert total of 5 year budget] exclusive of GST and subject to clauses 3.5,
3.6 and 5.1
The Approved Annual Budget will be paid in equal quarterly instalments, in advance and commencing on the Commencement Date and subject to completion of the Milestones
28 February 2023 and thereafter on 28 February of each year of the Term
Within 3 months of the expiry of the Term or termination of this agreement (whichever date is earlier)
60 calendar days after the end of each financial year or 60 days after termination of this agreement (whichever date is earlier)
Address for Notices
Associate Director, Policy and Contracts Snow Medical Research Foundation
Xxxxx 0, 00 Xxxxxxxx Xxxxxx, Xxxxx Offices – Xxxx Xxxxxxxx Xxxxxxx, XXX 0000
[Host Organisation name] [Address]
Email: [insert address]
This agreement is subject to the following special terms:
The Host Organisation will ensure the Fellow identifies themselves as a “Snow Fellow” where possible, including in all communications with the media regarding the Grant Activities and in accordance with any other specifications agreed by the Host Organisation and Snow Medical.
Signed on behalf of SNOW MEDICAL by its authorised officer:
Signature of authorised officer
Name (please print)
Date of signing
Signed on behalf of [Name of Host Organisation] by its authorised officer:
Signature of authorised officer
Name (please print)
Date of signing
By signing this agreement, each signatory warrants that they have authority to enter into this agreement on behalf of the party they are stated to represent.
A. The Fellow has applied for and has been awarded funding under the Snow Medical Research Foundation Fellowship Program (the Funding Program).
B. Snow Medical has agreed to provide the funding to the Fellow for the purposes of the Fellow carrying out the Grant Activities on the terms of this agreement.
C. The Host Organisation accepts the funding for the purpose of the Fellow carrying out the Grant Activities and agrees to administer the Funding and the Grant Activities in accordance with the terms of this agreement.
The following definitions apply throughout this agreement.
Annual Report means the report to be submitted by the Host Organisation to Snow Medical on the dates specified in the Details which details progress of the performance and outcomes of the Grant Activities relating to the previous calendar year pursuant to clause 17 and in the format and including the information as specified by Snow Medical from time to time.
Approved Annual Budget means the annual operating budget for the Grant Activities approved by Snow Medical in accordance with clause 5.
Australian Accounting Standards refers to the Australian Accounting Standards published by the Australian Accounting Standards Board as amended from time to time.
Australian Auditing Standards refers to the Australian Auditing Standards published by the Australian Auditing and Assurance Standards Board as amended from time to time.
Background Intellectual Property means Intellectual Property in existence at the date of this agreement and set out in Schedule 1 or Intellectual Property created independently of the Grant Activities.
Co-Investment Agreement has the meaning attributed to it under clause 10.4 (b).
Co-Investment Rights has the meaning attributed to it under clause 10.4 (a).
Code means the Australian Code for the Responsible Conduct of Research 2018.
Collaborating Organisation means an organisation that contributes to the Grant Activities and, where the context permits, includes its employees, advisers, officers, agents, students and contractors.
Commercialise includes, without limitation:
(i) to manufacture, sell, license, assign or hire for commercial benefit or otherwise exploit a product or process or other subject matter in which Intellectual Property rights subsist;
(ii) to provide a service for commercial benefit; or
(iii) to license or authorise any person to do any of the above for commercial benefit.
Commercialisation is similarly construed.
Confidential Information means any information which by its nature is confidential, is received on the understanding that it is confidential, or is marked as being confidential. Confidential Information does not include information that is in the public domain, is already lawfully known to the receiving party or has been independently developed by the receiving party.
Equipment means any item of property (including animals and bio banks), purchased, leased, created or otherwise brought into existence wholly, or in part, with the use of the Funds, which has at that time a value of over
$5,000 inclusive of GST, but excluding real property and Intellectual Property.
Extension has the meaning attributed to it under clause 3.5.
Fellowship Application means the fellowship application approved by Snow Medical and attached as Annexure 1 a) and, if applicable, as amended in accordance with the details specified in Annexure 1 b).
Final Report means a report to be submitted by the Host Organisation to Snow Medical within three (3) months of the expiry of the Term or termination of this agreement (whichever date is earlier) pursuant to clause 17, and in the format and including the information as specified by Snow Medical from time to time.
Financial Report means the report to be submitted by the Host Organisation to Snow Medical to account for expenditure of the Funds pursuant to clause 18 in the format and including the information as specified by Snow Medical from time to time.
Fraud means dishonestly obtaining a benefit, or causing a loss, by deception or other means and requires intent.
Funded Intellectual Property or Funded IP means Intellectual Property arising from or developed in the course of the Grant Activities by the Research Personnel.
Funding Policies means the Funding Program policies published on Snow Medical’s website and as amended from time to time.
Funding Rules means the funding rules for the Snow Medical Fellowship program 2020 attached as Annexure 2.
Funds or Funding means the amount of funds set out in the Approved Annual Budget and approved by Snow Medical in accordance with clause 5.1 and in any Extension.
Grant Activity or Grant Activities means any task, activity, services, work or other purpose to which the Funds relates and includes the conduct of the Project.
Intellectual Property means all copyright and neighbouring rights, all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered designs, Confidential Information (including trade secrets and knowhow and circuit layouts), and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Milestones means the milestones set out in the Fellowship Application, Extension and Approved Annual Budget.
Notice of Investment has the meaning attributed to it under clause 10.4.
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Project means the research program described in the Fellowship Application, any variation to the Fellowship Application agreed by the parties in writing, and in any Extension.
Reports means any report that is required to be completed by the Host Organisation under this agreement including the Annual Reports and Final Report.
Research Materials includes all documents, software, goods, information and data stored by any means created, generated, developed or brought into existence by the Research Personnel in the course of the Grant Activities.
Research Misconduct means research misconduct as defined in the Australian Code for the Responsible Conduct of Research 2018 and Fraud.
Research Personnel means the Fellow and any person working on the Grant Activities under their supervision.
Student means an individual enrolled as a candidate for a postgraduate research degree at the Host Organisation.
Term means the period from and including the Commencement Date to and including the Agreement End Date subject to clause 15 and any Extension under clauses 3.5 - 3.6 of this agreement.
Third Party Investment Arrangement means an agreement relating to the Funded Intellectual Property and its Commercialisation between the Host Organisation or a party appointed by the Host Organisation to Commercialise the Funded IP on its behalf and a party other than Snow Medical, and includes (without limitation) any assignment or commercial licence of the Funded IP, and any acquisition of ownership in the Host Organisation or the party appointed by the Host Organisation to Commercialise the Funded IP on its behalf that involves the Funded Intellectual Property and its Commercialisation.
Transfer Request has the meaning attributed to it under clause 16.
Other capitalised terms have the meaning given to them in the Details.
1.2 Rules for interpreting this agreement
In this agreement, headings are for guidance only and do not affect the interpretation of the clauses. The following rules apply unless the context requires otherwise:
(a) words importing the singular include the plural and vice versa;
(b) words importing one gender include all other genders;
(c) reference to a person includes a body politic, a body corporate, a partnership, an unincorporated association and a natural person, and the person's executors, administrators, successors, transferees, substitutes (including persons taking by novation) and assigns;
(d) reference to a statute, ordinance, code or other law includes regulations, directions and other instruments under it and consolidations, amendments, re- enactments or replacements of any of them;
(e) reference to $, dollar or AUD is to Australian currency;
(f) any agreement, obligation, representation, right or warranty on the part of or in favour of two or more persons binds or is for the benefit of them severally and not jointly or jointly and severally;
(g) a term or definition incorporated by reference into this document remains in force even if the document from which it was referred may be no longer in force;
(h) reference to a clause is a reference to a clause of this agreement and includes all sub-clauses, paragraphs and parts of that clause;
(i) where a word or phrase has a particular meaning, other parts of speech and grammatical forms of that word have corresponding meanings;
(j) any reference to “insurance”, “insurance policy” or “insurer” in this agreement includes, mutual risk cover held with a mutual risk provider designed to cover similar insurable risks to insurance and the providers of that risk cover.
2. EMPLOYMENT OF RESEARCH PERSONNEL
(a) the Research Personnel will be employed by the Host Organisation;
(b) the Host Organisation is responsible for the Research Personnel as employees of the Host Organisation including the payment of salary and applicable leave entitlements;
(c) Snow Medical is not responsible for any salary, employee on-costs or other entitlements (including, without limitation, annual leave, parental leave, carer’s leave sick leave, long service leave, public holidays, redundancy payments, and
superannuation), employment-related taxes or any other similar benefits and payments under any law, industrial instrument or conditions of service in relation to any Research Personnel, except as explicitly included as part of the relevant Approved Annual Budget; and
(d) Snow Medical accepts no responsibility for any costs or claims for which the Host Organisation may be liable as an employer or otherwise including, without limitation, redundancy, compensation, dismissal or discrimination claims.
3. CONDUCT OF THE GRANT ACTIVITIES
3.1 Funding Award
Snow Medical awards the Funding to the Fellow and the Host Organisation on the terms set out in:
(a) this agreement,
(b) the Funding Rules;
(c) the Fellowship Application; and
(d) the Funding Policies and guidelines.
3.2 Grant Activities
The Host Organisation must conduct the Grant Activities and ensure the Research Personnel conduct the Grant Activities:
(a) in a collaborative and professional manner;
(b) in compliance with all reasonable directions provided to the Host Organisation by Snow Medical;
(c) in compliance with all applicable laws and regulations; and
(d) ethically and in accordance with the Code.
3.3 Contributions of the Host Organisation
The Host Organisation must provide all personnel, facilities, services and resources in accordance with the Fellowship Application, Approved Annual Budgets and any Extension.
3.4 Conduct of the Project
The Host Organisation must ensure:
(a) the Fellow maintains reasonable, up to date and accurate records regarding the conduct and conclusions of the Project;
(b) the Project is conducted in accordance with the Fellowship Application and any Extension; and
(c) if the Project requires approval by the Host Organisation’s ethics and/or biosafety committees (or equivalent), it provides evidence of the ethics and/or biosafety approval(s) to Snow Medical, and the Project does not commence until the required approvals are obtained.
At least one year before the Agreement End Date, Snow Medical will conduct a review of the conduct of the Grant Activities and may request the Fellow submits a further three year research plan and budget to commence on the Agreement End Date (the Extension).
3.6 Acceptance of the Extension
Snow Medical will determine in its absolute discretion whether to accept the Extension and extend the Term for an additional three year period. Should Snow Medical accept the Extension, the terms of this agreement will remain unamended and binding on the parties except to the extent that they are varied by the Extension.
4. Research Integrity
4.1 Formal Procedures
The Host Organisation must have formal procedures in place for handling allegations of a breach of the Code and Research Misconduct.
The Host Organisation must immediately notify Snow Medical (in confidence):
(a) of any allegation of a breach of the Code
otherwise agreed in writing by the parties. The Host Organisation must on a confidential basis:
(a) promptly keep Snow Medical informed of the progress of any investigation into the alleged breach of the Code and/or Research Misconduct relating to the Grant Activities; and
(b) provide Snow Medical with a copy of any progress or interim reports.
4.4 Outcome of Investigation
As soon as it is known, the Host Organisation must on a confidential basis inform Snow Medical of the outcome of the investigation into the alleged breach of the Code and/or Research Misconduct and provide Snow Medical with a copy of the investigative report, an analysis of the outcomes of the investigation, and a summary of any remedial action to be taken against the respondent.
4.5 Consequential Actions
If Snow Medical determines that the Host Organisation has failed to conduct a timely investigation into any alleged breach of the Code or Research Misconduct relating to the Grant Activities, or has failed to keep Snow Medical appropriately informed of such an investigation, or Snow Medical is not satisfied with the outcomes of any investigation of an alleged breach of the Code or Research Misconduct by Research Personnel, Snow Medical may choose to:
(a) withhold or suspend payment of the Grant Activity Funds in whole or in part;
(b) terminate this agreement; and
(c) not accept new grant applications from the Host Organisation.
and Research Misconduct in respect of the
Research Personnel; and
(b) the nature of the breach of the Code and/or Research Misconduct, the name of the respondent and the investigation process.
Where the alleged breach of the Code and/or Research Misconduct relates to the Grant Activities, the appointment of an external investigator to lead the investigation of the allegation of a breach of the Code and/or Research Misconduct is mandatory unless
5.1 Approval of Annual Budgets
Subject to clause 5.2, the initial annual budget will be as detailed in the Fellowship Application. Thereafter, annually on the 28 February of each year, the Host Organisation shall submit to Snow Medical for its approval a proposed annual budget, specifying an estimate of the annual operating budget for the Grant Activities for the upcoming financial year. Snow Medical may approve, not approve or request amendments to the proposed annual budget in its absolute discretion.
5.2 Payments of Funds
Payment of Funds by Snow Medical to the Host Organisation is subject to an Approved Annual Budget for the relevant year.
5.3 Transfer between budget allocations
The Host Organisation may only transfer Funds between the allocations set out in the Approved Annual Budget with Snow Medical's prior written consent.
6. PAYMENT AND GST
6.1 The Funds
The Host Organisation will invoice Snow Medical for the Funds in accordance with the Payment Schedule. The invoice must be in the form of a tax invoice.
6.2 Use of Funds
The Funds must only be used and applied to the Grant Activities in accordance with the Approved Annual Budget.
6.3 Payment Terms
Subject to clauses 6.1 and 6.5 of this agreement, Snow Medical will pay the Host Organisation’s tax invoice within 28 calendar days of the date on which Snow Medical receives the invoice.
6.4 GST wording
Words defined in A New Tax System (Goods and Services Tax) Xxx 0000 (Cth) have the same meaning in this clause 6.
6.5 Payment of GST
If any supply under this agreement is a taxable supply, the recipient of the supply must pay to the supplier an additional amount equal to the GST payable on the supply. Any amount of GST payable is payable at the same time as the payment for the supply to which it relates.
6.6 Interest-bearing account
The Host Organisation must hold the Funds as separately identifiable funds in an interest- bearing account and managed in a manner which applies interest earned on the Funds to the Grant Activities.
6.7 Financial management
The Host Organisation must ensure proper financial management of the Funds, including
by obtaining and keeping invoices and maintaining proper books and detailed records of costs and expenses incurred in relation to the Grant Activities, and by applying its usual arrangements for monitoring and preventing fraud, bribery and any other corrupt practices.
6.8 Accounts and records keeping
The Host Organisation must keep financial accounts and records relating to the Funds and the Grant Activities to enable:
(a) the preparation of Financial Reports in accordance with Australian Accounting Standards;
(b) generation of an income and expenditure statements for each financial year of the Term, including:
i. a schedule of the Equipment acquired, sold, written-off or otherwise disposed of during each financial year;
ii. a comparison of the income and expenditure in each financial year against the Approved Annual Budget; and
iii. the audit of those records in accordance with Australian Auditing Standards.
7. WITHHOLDING, SUSPENSION AND REPAYMENT OF THE FUNDS
7.1 Withholding and Suspension of the Funds
If the Host Organisation or Fellow fails to comply with this agreement, Snow Medical may withhold or suspend payment of the Funds until Snow Medical is satisfied that the Host Organisation or Fellow (as applicable) has performed its obligations under this agreement. If Snow Medical withholds or suspends payment of the Funds, the Host Organisation and Fellow must continue to perform its obligations under this agreement in respect of the Grant Activities that are not affected by the suspension or withholding of the Funds.
7.2 Repayment of Funds
The Host Organisation must repay within 28 calendar days of a demand being sent:
(a) any payment of the Funds spent in breach of this agreement;
(b) all unspent Funds or Funds not legally committed for expenditure in accordance with the terms of this agreement if the Host
Organisation is in breach of this agreement;
(c) any overpayment; and
(d) any interest earned on the Funds required to be repaid.
7.3 Calculation of the repayment
Where the Host Organisation has failed to comply with this agreement, Snow Medical will calculate the amount of repayment the Host Organisation must make with regard to the extent of the failure to complete the Grant Activities.
7.4 Set off
Snow Medical may set off the amount of any overpayment or claim for repayment against any future instalment of the Funds payable to the Host Organisation.
8. PUBLICATION, ACKNOWLEDGEMENTS AND OPEN ACCESS
The Host Organisation must ensure that the Fellow uses their best endeavours to disseminate, through publications and conference presentations, the Fellow’s research findings arising out of the Grant Activities.
8.2 Delay of Publication
Publication or release of the Fellow’s research findings arising out of the Grant Activities may be delayed for up to 90 calendar days to allow for protection and Commercialisation of Funded Intellectual Property.
Snow Medical’s support must be acknowledged in any publications or presentations arising from the Grant Activities.
8.4 Open access
Any publication arising from the Grant Activities and its related data must be made openly accessible as soon as possible but, in any event, no later than six months from the publication date. Where this requirement cannot be met, reasons must be provided in the Annual Report. Metadata for all publications arising from the Grant Activities and its related data must be made available to the public in an institutional repository as soon as possible but no later than three months from the date of publication.
9. INTELLECTUAL PROPERTY
9.1 Ownership and Licence
(a) Nothing in this agreement affects the ownership of Background Intellectual Property.
(b) Funded Intellectual Property vests in the Host Organisation upon its creation.
(c) The Host Organisation grants Snow Medical a permanent, irrevocable, free, world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce, communicate, modify and adapt material in the Fellowship Application, Extension and the Reports for its purposes (excluding Commercialisation).
(d) If the Fellowship Application, Extension or a Report contains material belonging to a third party, the Host Organisation must ensure that it has in place all necessary consents sufficient to allow Snow Medical to deal with the third party material in accordance with this agreement.
9.2 Copyright in Student Thesis
Despite anything to the contrary in this agreement, a Student retains copyright in their thesis.
10.1 Notification of Funded Intellectual Property
If the Host Organisation believes any Funded Intellectual Property has commercial potential, it must promptly inform Snow Medical in writing.
10.2 Protection of Funded Intellectual Property
The Host Organisation will take the steps necessary to protect Funded Intellectual Property as is reasonable to do so with regard to commercial considerations. The Host Organisation will at all times promptly inform Snow Medical of significant measures considered and taken to protect, manage and Commercialise the Funded Intellectual Property.
10.3 Revenue sharing
Snow Medical (or its nominee) and the Host Organisation shall negotiate in good faith to agree the terms of a revenue share agreement in respect of net income received by the Host Organisation from the Commercialisation of such Funded Intellectual Property. Net income
received by the Host Organisation from the Commercialisation of such Funded Intellectual Property shall be divided in the following proportions:
(a) 75% to the Host Organisation; and
(b) 25% to Snow Medical.
10.4 Co-Investment Rights
(a) The Host Organisation may not enter into a Third Party Investment Arrangement without first notifying Snow Medical in writing of the Third Party Investment Arrangement (the Notice of Investment) and offering Snow Medical the opportunity to invest in the Funded Intellectual Property and its Commercialisation on Terms and Conditions equal to or more favourable than those agreed with the third party (the Co-Investment Rights). The Notice of Investment will include all information required by Snow Medical or its nominee, as the case may be, to consider the exercise of the Co-Investment Rights, and as a minimum all information provided by the Host Organisation to the third party in respect of the Third Party Investment Arrangement.
(b) Snow Medical or its nominee, as the case may be, may exercise the Co-Investment Rights by giving notice in writing to the Host Organisation within 60 calendar days of receipt of the Notice of Investment, and the Host Organisation and Snow Medical or its nominee, as the case may be, shall forthwith execute an investment agreement between them on such Terms and Conditions (the Co-Investment Agreement). At Snow Medical’s or its nominee’s discretion, as the case may be, execution of the Co-Investment Agreement may be made conditional upon execution of the Third Party Investment Arrangement by the Host Organisation and third party.
For the purposes of this sub-clause 10.4, “Terms and Conditions” means the terms and conditions agreed by the Host Organisation and a third party pursuant to a Third Party Investment Arrangement but excludes any intangible and non-financial benefits to be made available by a third party under the Third Party Investment Arrangement. Under a Co- Investment Agreement, Snow Medical or its nominee, as the case may be, has no obligation to provide any intangible and non-financial
benefits agreed with a third party pursuant to a Third Party Investment Arrangement.
If a Third Party Investment Arrangement involves an issue of shares, the Host Organisation must offer Snow Medical shares in the same quantity and at the same price agreed between the Host Organisation and the third party, or third party syndicate, as the case may be, under the Third Party Investment Arrangement.
10.5 Snow Medical’s rights to protect, manage and Commercialise the Funded Intellectual Property
If the Host Organisation does not protect manage or Commercialise any Funded Intellectual Property to Snow Medical’s reasonable satisfaction, then Snow Medical (or its nominee) will have the right by giving the Host Organisation six months’ written notice to protect, manage and commercialise the Funded Intellectual Property on the Host Organisation’s behalf. Snow Medical may exercise this right sooner where it reasonably believes the opportunity to protect, manage or commercialise the Funded Intellectual Property could be lost if more immediate action is not taken. The Host Organisation agrees to do, and will ensure that the Research Personnel do, all acts required to assist Snow Medical in such protection, management and Commercialisation.
11. CONFIDENTIAL INFORMATION
11.1 Disclosure and Use of Confidential Information
Each party must not during the Term or for five years after the end of the Term, disclose to any third party, or use for any purpose, any of the Confidential Information of the other party.
11.2 Obligations on a Receiving Party
The party receiving Confidential Information (Receiving Party) must:
(a) take all reasonable steps, and do anything reasonably required by the party disclosing the Confidential Information (Disclosing Party), to keep the Confidential Information under the Receiving Party's control;
(b) immediately notify the Disclosing Party if the Receiving Party becomes aware of any unauthorised access to, or use or disclosure of, any Confidential Information;
(c) not use, copy or reproduce, nor cause or allow any other person to use, copy or reproduce, any Confidential Information other than in accordance with this agreement;
(d) immediately upon completion of the Project or termination of this agreement deliver to the Disclosing Party, or if directed by the Disclosing Party destroy, every copy of Confidential Information in the Receiving Party's possession, except that:
(i) they may retain one copy of the Confidential Information to the extent required to comply with applicable law or regulation; and
(ii) they need not destroy copies of any computer records or files containing the Confidential Information which have been created as a result of automatic archiving or back-up procedures on secured central storage servers and which cannot reasonably be deleted; and
(e) if any such Confidential Information is retained pursuant to sub-clause 11.2(d), the terms of this agreement remain in full force and effect with respect to such Confidential Information so retained for so long as such Confidential Information is retained.
11.3 Exceptions to Obligations
Neither party will be in breach of any obligation to keep any Confidential Information confidential to the extent that it:
(a) is disclosed to the Receiving Party's employees or agents as necessary for the performance of this agreement and such employees or agents are instructed as to the confidential nature of the information;
(b) is required to be disclosed by law and the Receiving Party first informs the Disclosing Party of the intended disclosure and cooperates with the Disclosing Party to limit disclosure as reasonably requested;
(c) is disclosed to the Receiving Party's solicitors, auditors, insurers or accountants; or
(d) is approved for release in writing by an authorised representative of the Disclosing Party.
12.1 Personal Information
Where a party has access to Personal Information in order to perform its obligations under this agreement, the party holding the Personal Information must comply with the requirements any privacy legislation applicable to the party, including if applicable, the Privacy Xxx 0000 (Cth).
13. CONFLICTS OF INTEREST
13.1 Notification of Conflicts of Interest
If a Conflict of Interest arises during the Term in respect of the Host Organisation’s or the Research Personnel’s performance of this agreement, the Host Organisation must immediately notify Snow Medical in writing of the full details of the Conflict of Interest and the steps it proposes to resolve or otherwise deal with that Conflict of Interest.
13.2 Dealing with Conflicts of Interest
The Host Organisation must take such steps as Snow Medical may reasonably require to resolve or otherwise deal with that Conflict of Interest. If the Host Organisation fails to notify Snow Medical under clause 13.1, or is unable or unwilling to resolve or deal with the Conflict of Interest as required by Snow Medical in accordance with this clause 13.2, Snow Medical may suspend or terminate this agreement, withhold some or all of the Funds, require the Host Organisation to repay some or all of the Funds or reduce the scope of this agreement as it sees fit.
14.1 Use of Equipment
Any item of Equipment:
(a) must be used for the Grant Activities and the Fellow and the Research Personnel must be given priority access to the Equipment; and
(b) must be maintained in good condition and safe working order by the Host Organisation.
14.2 Ownership of Equipment
Ownership of any Equipment will vest in the Host Organisation and listed in its assets register, except to the extent that upon
termination of this agreement, the Equipment must be dealt with in accordance with the directions of Snow Medical in a timely manner.
15.1 Termination for breach
A party may terminate this agreement in writing if the other party breaches a term of this agreement and fails to remedy the breach within 30 calendar days of receiving notice requiring it to do so.
15.2 Termination by Snow Medical
Snow Medical may terminate this agreement in writing if:
(a) the Host Organisation has entered into any form of insolvency, liquidation or external administration, whether voluntary or involuntary, formal or otherwise;
(b) the Host Organisation is charged with a breach of any law or is the subject of proceedings or investigations commenced or threatened by the Independent Commission Against Corruption, the NSW Police Force or a similar public body whether of a state, territory or the Commonwealth or in any other country;
(c) the Host Organisation or Snow Medical determines that an allegation of a breach of the Code or Research Misconduct is substantiated against Research Personnel in accordance with clause 4 of this agreement; or
(d) if the Host Organisation is in breach of any other agreement with Snow Medical.
15.3 Termination of Fellow
Should the Fellow:
resign or retire from employment at the Host Organisation;
become physically or mentally incapable of undertaking the Grant Activities for a period of longer than 90 calendar days; or
have his/her employment at the Host Organisation terminated,
then this agreement and the Funding will terminate at the election of Snow Medical.
If this agreement is terminated for any reason, then:
(a) each party must return all property in their possession belonging to the other party, including Confidential Information and Intellectual Property; and
(b) the Host Organisation must repay any amounts of the Funding already paid to the Host Organisation:
(i) which has not been expended in performance of the Project; or
(ii) not irrevocably committed for expenditure in performance of the Project in accordance with the terms of this agreement up to the termination date, provided such costs are supported by appropriate receipts and documentation.
15.5 No prejudice
Termination of this agreement is without prejudice to the rights of the terminating party to obtain damages for any breach of this agreement.
Clauses 4 (Research Integrity), 7.2 – 7.3
(Repayment of Funds), 8 (Publication), 9 (Intellectual Property), 10 (Commercialisation), 12 (Privacy), 14.2 (Ownership of Equipment),
15 (Termination), 16 (Transfers), 17 (Reports), 18 (Financial Reports and Recovery of Funds), 19 (Peer Review), 20.6 (Indemnity), 21 (Insurance), 22 (Logos and Publicity) and other clauses required to give those clauses effect survive the termination or expiration of this agreement.
16.1 Transfer request
If the Fellow resigns from employment at the Host Organisation, the Fellow may request that the conduct of the Grant Activities and the Funding are transferred to a new host organisation (the Transfer Request) and the provisions of this clause 16 shall apply. Snow Medical reserves the right, in its absolute discretion:
(a) to terminate this agreement under clause 15.3;
(b) to suspend or reduce payment of the Funds; and/or
(c) to approve the Transfer Request and require the Host Organisation to respond positively and punctually to the Transfer Request, including without limitation, to transfer:
(i) any unexpended Funds to the new host organisation;
(ii) any Equipment to the new host organisation; and
(iii) the records and Research Materials to the new host organisation to enable the Project to be undertaken at the new host organisation in accordance with the requirements specified in the new host organisation’s funding agreement with Snow Medical,
in such circumstances, the Host Organisation must prompt ly do all things necessary and complete and sign all necessary documents to facilitate the Transfer Request.
16.2 No liability
Snow Medical will not be liable to pay any costs or compensation to the Host Organisation resulting from any action it takes in relation to the Transfer Request.
The Host Organisation must submit written reports relating to the Funds as required by Snow Medical, including the following:
(a) Annual Report – due on the dates specified in the Details;
(b) Final Report – due no later than three months from the expiry of the Term or any termination of this agreement, whichever is the earliest; and
(c) any report relating to the Grant Activities reasonably requested by Snow Medical from time to time.
18. FINANCIAL REPORTS AND RECOVERY OF FUNDS
18.1 Provision of Financial Reports
The Host Organisation must provide the Financial Reports to Snow Medical within 60 calendar days after:
(a) expiry of the Term or any termination of this agreement, whichever is the earliest; and
(b) the completion of each financial year in which the Funding is made.
18.2 Content of Financial Reports
The Financial Reports must include a definitive statement as to whether:
(a) the financial information for the Grant Activities represents the financial transactions fairly and is based on proper accounts and records; and
(b) the Funding was expended in accordance with this agreement.
18.3 Recovery of Funds
Snow Medical may recover any unspent Funds or ineligible costs and may offset any amounts owed to Snow Medical against any other sums (including any grant payments) owed to the Host Organisation.
19. PEER REVIEW
The Host Organisation will respond positively and punctually to requests from Snow Medical to peer review Snow Medical grant applications.
20. WARRANTIES AND LIABILITY
20.1 Due care and skill
The Host Organisation warrants that it will carry out its Project obligations with due care and skill and in a professional manner consistent with generally accepted research and academic practice.
20.2 Background Intellectual Property
The Host Organisation warrants that to its actual knowledge at the date of this agreement use of its Background Intellectual Property will not infringe the Intellectual Property rights of any third party.
20.3 Research integrity
The Host Organisation warrants that at the date of this agreement, there are no allegations of a breach of the Code nor Research Misconduct currently being investigated against the Fellow nor have any allegations been previously upheld.
20.4 Bullying and harassment
The Host Organisation warrants that at the date of this agreement there are no allegations of bullying and harassment currently being
investigated against the Fellow nor have any allegations been previously upheld.
20.5 Conflicts of Interest
The Host Organisation warrants that to its actual knowledge at the date of this agreement no Conflicts of Interest exist in connection with its or the Research Personnel’s performance of this agreement. If a Conflict of Interest arises, it must immediately report it to Snow Medical and the steps it proposes to resolve or otherwise deal with the Conflict of Interest.
The Host Organisation indemnifies Snow Medical against all damage, expense, loss or liability suffered or incurred by Snow Medical, its officers, employees and agents in connection with:
(i) any breach, unlawful act or omission or negligence by the Host Organisation, any of the Research Personnel or a Collaborating Organisation in connection with this agreement and the Grant Activities; and
(ii) any third party claim relating to the Grant Activities including its conduct or outcome, or that use by the Host Organisation or any of the Research Personnel or any Collaborating Organisation of the Background IP, Funded IP or the conduct of the Project, or any part of the Project, infringes a third party’s rights, including any Intellectual Property rights, right of confidentiality or moral rights.
20.7 Contributory negligence
The Host Organisation’s liability to Snow Medical under this agreement is reduced to the extent that any damages, liability, loss or costs arise from or are attributable to, any negligent act or omission of Snow Medical or its officers, employees, agents or contractors.
The Host Organisation must maintain insurances appropriate to its involvement in the Grant Activities. On request, the Host Organisation must provide evidence to Snow
22. USE OF LOGOS AND PUBLICITY
22.1 Use of logos
The Snow Medical logos may only be used by the Host Organisation in connection with the promotion of the Fellow and the Grant Activities. Otherwise, the Snow Medical logos must only be used with the prior written consent of Snow Medical.
The Host Organisation will participate in media or other publicity events in connection with the Grant Activities as reasonably requested by Snow Medical during the Term and for a period of 1 year following the Term or such other period as agreed in writing by the parties.
22.3 Communications to the media by the Host Organisation
The Host Organisation must ensure that Snow Medical is properly acknowledged in any correspondence, public announcement, advertising material, research report or other material produced by, on behalf of or through the Host Organisation or a Collaborating Organisation that relates to the Fellow and the Grant Activities in accordance with the Funding Policies.
22.4 Snow Medical Announcements
Snow Medical may publicise this agreement by (for example) including the Host Organisation’s name, the Funds, the name of the Fellow, the names of the Fellow’s research team, the title and a brief description of the Project in media releases, general announcements about research-related funding or annual reports, or through any other means as determined by Snow Medical.
22.5 Use of images
Snow Medical may request the Host Organisation provides it with copies of images and other information about the Grant Activities, which Snow Medical may use for publicity and other agreed purposes. The Host Organisation will respond positively and punctually to such requests.
Medical of the currency of such insurance policies.
23.1 Method of giving Notice
A notice, request or other communication to a party (Notice) under this agreement, must be in
writing and be delivered by hand or sent by prepaid post, or email to the notice address, or email address of that party as specified in the Details.
23.2 Effective Service
A Notice is given or served:
(a) if delivered by hand, upon delivery;
(b) if in the form of a letter sent by prepaid post, three days (eight days if sent from one country to another country) after the date on which it was sent; and
(c) if by email, when the recipient acknowledges receipt of the Notice by return email to the sender (other than by automatic acknowledgment sent by the recipient's server).
23.3 Notice Serviced Outside Business Hours
A Notice that would be given or served on a day which is not a business day in the place to which the Notice is sent, or is later than 5:00
p.m. (local time) it will be taken to have been given or served at the commencement of the next business day in that place.
23.4 Change of Address for Notices
A party may change its Notice address or email address by Notice to the other party.
24. FORMAL TERMS
This agreement is governed by the laws of New South Wales and any dispute relating to it must only be referred to the courts of New South Wales and the Federal courts of Australia.
24.2 Relationship of Parties
Nothing in this agreement constitutes a relationship of employer and employee, principal and agent, or trust, or partnership between the parties. Neither party has authority or power to bind the other party.
If there is an inconsistency between a provision of the Special Terms, Details, General Terms, Funding Policies, Funding Rules or an annexure then the provisions of the first-mentioned prevail.
If any clause or any part of this agreement, the Funding Rules or the Fellowship Application are adjudged by a court or other legal authority of competent jurisdiction to be invalid, that judgment does not affect the remainder of this agreement, the terms of which remain in full force and effect.
24.5 Entire Agreement
This is the entire agreement between the parties about its subject matter and replaces all oral and written prior communications and agreements between the parties.
The Host Organisation may sub-contract the performance of any part of the Grant Activities for which it is responsible only with the prior written consent of Snow Medical. The Host Organisation remains responsible and liable for the performance of its obligations under this agreement and for all costs incurred with respect to its subcontractors.
(a) Snow Medical may amend the Funding Policies at any time. It will publish any changes to the Funding Policies on its website. Once published, any changes apply to the Grant Activities and the Funding.
(b) This agreement may only be varied by the parties in writing.
24.8 No Waiver
A waiver by a party of any breach or of a failure to comply with any provision of this agreement by the other party has no effect unless it is in writing.
(a) In the case of a dispute arising under this agreement (the Dispute) a party to this agreement must not commence any court or arbitration proceedings unless the parties have complied with the following paragraphs of this clause except where a party seeks urgent interlocutory relief.
(b) A party to this agreement claiming that a Dispute has arisen out of or in relation to this agreement must give written notice (the Dispute Notice) to the other party to this agreement specifying the nature of the Dispute.
(c) Within fourteen (14) calendar days of receipt of the Dispute Notice (or such further period as agreed in writing by them) the parties must agree:
(i) the dispute resolution technique (e.g. expert determination) and procedures to be adopted;
(ii) the timetable for all steps in those procedures; and
(iii) the selection and compensation of the independent person required for such technique.
(d) If the parties cannot agree to the matters set out in clause 24.9(c) within fourteen
(14) calendar days, the parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of New South Wales, and, the President of the
Law Society of New South Wales or the President’s nominee will select the mediator and determine the mediator’s remuneration.
(e) If the Dispute has not been resolved within a timeframe agreed under clause 24.9(c)(ii), either party may at their discretion institute legal proceedings.
This agreement may be signed in counterparts which may be exchanged electronically.
The Host Organisation must not assign or novate its obligations or interests under this agreement without the prior written consent of Snow Medical.
Annexure 1 a) – Fellowship Application
Annexure 1 b) – Amendments to the Fellowship Application
Annexure 2 – Funding Rules
Background Intellectual Property