THIS COLLABORATION AGREEMENT is made the day of 2017 BETWEEN The Movember Group Pty Ltd as trustee for the Movember Foundation (ABN 48894537905) of 233 Punt Road, Richmond, VIC 3121 ( Movember Foundation ) AND The National Breast Cancer Foundation (ABN 37 144 841 707) of Level 9, 10 Barrack Street, Sydney, NSW 2000 ( NBCF ) AND [Insert University name and address] ( Recipient ) BACKGROUND A. Movember Foundation is an organisation that has a vision to have an everlasting impact on men s health. B. NBCF is an organisation that has a vision to prevent and cure breast cancer. C. Movember Foundation and NBCF have agreed to collaborate to provide funding to the Recipient to undertake research to help transform the lives, and reduce the number of deaths, of men and women around the world diagnosed with prostate, breast and potentially also ovarian cancer. NOW IT IS AGREED AS FOLLOWS 1. DEFINITIONS AND INTERPRETATIONS 1.1 In this Agreement the following definitions will apply: Agreement means this agreement and any annexures or schedules to it, as amended from time to time; Australian Research Institution means a research institute that is based in an Australian State or Territory; Background Intellectual Property means material, created or developed by either Movember Foundation, NBCF or the Recipient which: (i) exists on the date of this Agreement; (ii) (iii) is independently created after the date of this Agreement by Movember Foundation, NBCF or the Recipient; or any modifications, enhancements or improvements now or hereafter made to such material, and includes the Intellectual Property Rights in such material. For greater certainty, in the case of Movember Foundation and NBCF, Background Intellectual Property includes material created or developed by each organisation as part of their respective Movember Foundation and NBCF Campaigns, and in the case of Recipient, includes material created or developed Page 1
by Recipient in the identification, description, implementation, monitoring and evaluation of Project. Commencement Date means the date set out in Item 1 of Schedule 1. Commercialisation Costs means all costs and disbursements incurred in connection with the commercialisation of the relevant Intellectual Property Rights, including application, registration and renewal fees relating to those rights, and all invoiced patent attorney and external legal costs associated with application, registration and renewal of registrations relating to those rights, royalties actually paid to third parties in order to develop, make and sell any licensed product or service incorporating those rights and any other external costs that have been incurred with Movember Foundation and NBCF s consent, but do not include any costs incurred in salary or other allowances for staff of the Recipient, or operational costs of the Recipient. Confidential Information means all information that is not in the public domain that is by its nature confidential or that has been designated as confidential by the disclosing party, and includes all trade secrets, know-how, financial information, data and other commercially or scientifically valuable information of whatever description and in whatever form (whether written, or oral, visible or invisible). For the avoidance of doubt, the results of the Project shall not be considered Confidential Information; Funding means the funding to be provided to Recipient for the purposes of the Project, as detailed in Item 3 of Schedule 2 or as subsequently approved in writing by Movember Foundation and NBCF; Gross Sales means the price or return received from commercialising the relevant Intellectual Property Rights, including from the sale of a product, services, process or technology which uses or incorporates the rights, by the Recipient, including signing fees, royalties and licence fees, including on sub-licences, dividends, proceeds of sale of shares in the Recipient (or a relevant related body corporate). Initial Term means the period set out in Item 1 of Schedule 1. Intellectual Property Rights or IPR means all industrial and intellectual property rights, including without limitation: (1) patents, copyright, future copyright, trade business, company or domain names, registered and unregistered trademarks, know-how, trade secrets and the right to have confidential information kept confidential, any and all other rights to intellectual property which may subsist anywhere in the world; and (2) any application or right to apply for registration of any of those rights. Key Person means the person or persons (if any) set out in Item 1 of Schedule 2; Movember Foundation Campaign means the campaign held during November each year organised by Movember Foundation where participants grow moustaches to raise money for and increase public awareness about male health issues generally and for the avoidance of doubt includes all events held in relation to the Campaign. Movember Foundation Marks means the registered and unregistered names, trademarks and logos, including goodwill owned by, or licensed to, Movember Foundation, including those set out in Item 3 of Schedule 1 and any others set out in the Movember Foundation Branding Guidelines. Page 2
Movember Foundation Branding Guidelines means the guidelines as provided to the Recipient by Movember Foundation from time to time. NBCF Campaign means the campaign held during October Breast Cancer Awareness Month each year organised by NBCF to raise money for and increase public awareness about breast cancer issues generally and for the avoidance of doubt includes all events held in relation to the NBCF Campaign. NBCF Marks means the registered and unregistered names, trademarks and logos, including goodwill owned by NBCF, including those set out in Item 3 of Schedule 1 and any others set out in the NBCF Branding Guidelines. NBCF Branding Guidelines means the guidelines as provided to the Recipient by NBCF from time to time. Net Sales means Gross Sales, less the Commercialisation Costs, discounts, rebates and allowances, distribution costs, including packaging, delivery and insurance costs, taxes, duties, imposts and other like government charges incorporated in the gross invoice price of any product, process, service or technology incorporating the relevant Intellectual Property Rights and amounts refunded or credited, solely in respect of sales of any product, process, service or technology incorporating the relevant Intellectual Property Rights. Project means the project described in Item 2 of Schedule 2. Project Materials means all publications, reports, summaries, documents, data and any other information generated by the parties in relation to the Project but does not include any Background Intellectual Property, Confidential Information or any of the Movember Foundation or NBCF Marks. Schedule means a schedule attached to this Agreement; Term means the Initial Term and any further period agreed between Movember Foundation, NBCF and the Recipient in accordance with clause 2; and 1.2 In this Agreement, unless the contrary intention appears: (c) (d) (e) (f) headings are for ease of reference only and do not affect the meaning of this Agreement; the singular includes the plural and vice versa and words importing a gender include other genders; other grammatical forms of defined words or expressions have corresponding meanings; a reference to a specific time for the performance of an obligation is a reference to that time in the place where that obligation is to be performed; a reference to a party includes its executors, administrators, successors and permitted assigns; and words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies. Page 3
1.3 For the avoidance of doubt, and regardless of the existence of any translated versions that may have been created, the official language of this Agreement and any related documents shall be English. 2. TERM 2.1 This Agreement commences on the Commencement Date and unless terminated earlier in accordance with clause 13 will continue in force until the Project has been completed to the reasonable satisfaction of both Movember Foundation and NBCF, or the Term ends, whichever is earlier. 2.2 If the Recipient wishes to extend the Initial Term, the Recipient must provide Movember Foundation and NBCF with a proposal including the extended term proposed, which must be less than 2 years, a budget, a further project or research plan (including milestones and deliverables) and any other information requested by Movember Foundation and NBCF at least 60 days before the end of the Initial Term. Movember Foundation and NBCF have complete discretion whether or not to accept that proposal. If Movember Foundation and NBCF accept the proposal, Movember Foundation and NBCF will jointly notify the Recipient of the acceptance, and the Agreement will be varied in accordance with that notice with effect from the end of the Initial Term. 3. PARTICIPATION 3.1 The Recipient will undertake the Project in accordance with the terms of this Agreement and any timetable and performance measures set out in Schedule 2. 3.2 The Recipient warrants that it has all necessary rights, authorisations and approvals (including any required in accordance with clause 7.2), and if any Key Person is an employee of another institution (Collaborating Institution), has obtained an undertaking from such Collaborating Institution in the form set out in Schedule A that it will comply with this agreement in relation to its employee s participation in the Project, in order to carry out its obligations under this Agreement ( Approvals ). Movember Foundation and NBCF will not release the Funding unless and until the Recipient can reasonably establish that the Approvals have been obtained. 3.3 It is a condition of the award of Funding that the Key Persons are based in Australia, or at the very least affiliated with an Australian Research Institution. 3.4 Movember Foundation and NBCF will have the rights set out in clause 13.2 if: (c) any of the Key Persons cease to be employed by the Recipient; or any of the Key Persons cease to be based in Australia, or affiliated with an Australian Research Institution; or the Recipient at the Commencement Date, or later, obtains funding from another unrelated party for the same subject matter covered by the Project. 3.5 Subject to clause 3.4, any material variations to the Project, including without limitation variations to the members of the project team, must be approved in writing by all parties prior to effecting such variation, such approval not to be unreasonably withheld or delayed. The Recipient must provide such information as is reasonably necessary for Movember Foundation and NBCF to assess the request for the variation, including the anticipated impact of the Project, the relevant timelines, resource requirements, and any increase or decrease in Funding required to implement the variation. The Recipient acknowledges that it will not be unreasonable for Movember Foundation and NBCF to refuse approval if the variation requires an increase in the Funding. Page 4
3.6 The Recipient must provide physical, organisational, policy and procedural infrastructure for the conduct of the Project. 3.7 The Recipient must ensure that any equipment purchased with the Funding ( Equipment ) is: used for the purposes of the Project; and properly maintained and insured, and that: (c) (d) any changes to the use of the Equipment are notified to Movember Foundation and NBCF. Any such proposed re-purpose is to be approved in writing by the Movember Foundation and NBCF in advance; and any sale of the Equipment is notified to Movember Foundation and NBCF. Any such proposed Equipment sale is to be approved in writing by the Movember Foundation and NBCF in advance. The proceeds of such agreed sale are used for the Project. 3.8 The Recipient warrants and agrees that at the time of entry into this agreement and throughout the term of this agreement, neither the Recipient nor any Key Person is or will be an applicant for, or a recipient of funds from, or an employee or an employer of an entity that is an applicant for or a recipient of funds from: (c) the tobacco industry; The Smoking and Health Research Foundation of Australia; or any organisation associated with the tobacco industry or deemed by NBCF or Movember Foundation, in writing to the Recipient, to be associated with the tobacco industry, regardless of whether the funds are received directly or indirectly, including through a collaborator or where applicable, through a particular faculty or school of the Recipient or by any other means, or whether for health related research, projects or services (wherever in the institution or entity such research or projects may be undertaken or services provided or supported). 3.9 NBCF or Movember Foundation may terminate this agreement immediately by notice to the Recipient if the Recipient breaches its obligations under clause 3.8. 4. EXECUTIVE COMMITTEE 4.1 The Movember Foundation and NBCF have established an Executive Committee to govern the Project. 4.2 The Executive Committee will have the Terms of Reference as set out at Schedule 3. 4.3 Decisions of the Executive Committee are binding on the Recipient and the Recipient must abide by each decision. 5. FUNDING 5.1 Subject to the terms of this Agreement, Movember Foundation and NBCF will provide the Funding to the Recipient in the manner specified in Schedule 2, unless otherwise agreed in writing between the parties. The Recipient acknowledges and agrees that Page 5
Movember Foundation is not obliged to pay to the Recipient any Funding that is Funding specified in Schedule 2 to be paid by NBCF, and NBCF is not obliged to pay to the Recipient any Funding that is Funding specified in Schedule 2 to be paid by Movember Foundation. 5.2 The Recipient must only use the Funding for the purposes of undertaking the Project. 5.3 The Recipient must submit a valid invoice to each of Movember Foundation and NBCF on the dates specified in Item 3 of Schedule 2. 5.4 The Recipient acknowledges that Movember Foundation and NBCF may jointly agree to withhold any unpaid part of the Funding, and if necessary require the repayment of any part of the Funding already paid, if together Movember Foundation and NBCF reasonably believe that; the Project is not being carried out in accordance with the performance expectations of the funding as assessed according to the performance measures as set out in Item 4 of Schedule 2; and/or the Recipient is not complying with the terms of this Agreement. 5.5 Apart from the Funding, Movember Foundation and NBCF will not be liable for any expenditure by the Recipient. 5.6 If the Recipient completes the Project without expending all the Funding, or the agreement is terminated before the Project is completed, the Recipient must return to Movember Foundation and NBCF in equal proportions any unexpended Funding remaining once the Project has been completed, or upon valid termination. 6. PERSONNEL 6.1 The Recipient must ensure that all team members participating in the Project must hold the appropriate qualifications and be suitably skilled to carry out their tasks. Neither NBCF nor Movember Foundation are responsible to the Recipient or to any team members for remuneration, annual leave, sick leave, long service leave, public holidays, redundancy payments, superannuation, employment related taxes or any similar benefits or payments under any law or industrial instrument. 6.2 Any sub-contracting of the Project must be approved in writing by Movember Foundation and NBCF, and the Recipient must have obtained an undertaking from the proposed sub-contractor in the form set out in Schedule A that it will comply with this agreement in relation to its participation in the Project. 7. COMPLIANCE WITH LAWS AND POLICIES 7.1 The Recipient must: (c) comply with all laws, regulations and mandatory standards applicable to the performance of its obligations under this Agreement; hold all licences necessary to perform its obligations under this Agreement; and comply with any reasonable and relevant policies notified by Movember Foundation and NBCF as far as they relate to the Project. 7.2 The Recipient must conduct the Project to high professional, ethical and industry standards, including best practice standards relating to good scientific practice, and Page 6
comply with any relevant ethical, research or other policies and guidelines including without limitation in relation to privacy, data sharing, animal care, biohazards and research activities having potential effects on the environment, and must provide documentation confirming any necessary approvals under such policies upon reasonable request by Movember Foundation and NBCF. For the avoidance of doubt, any serious breach of ethics or scientific integrity in relation to a Project will be considered a material breach that is not capable of being remedied for the purposes of clause 13.1 of this Agreement. 8. CONFIDENTIALITY 8.1 Except as otherwise provided in this clause 8, each party must keep confidential and not disclose to any third party any Confidential Information and only use Confidential Information for the purposes of carrying out its obligations under this Agreement. 8.2 Each party may: disclose Confidential Information to its: (i) (ii) (iii) employees; directors and officers; and legal, financial or other professional advisers who have a need to know for the purposes of this Agreement (and only to the extent that each has a need to know), provided the disclosure is made subject to an obligation of confidentiality in accordance with clause 8.4; (c) use the Confidential Information to the extent necessary to carry out the Project; and disclose Confidential Information to the extent required by law. 8.3 The obligations imposed on a party by this clause 8 will not apply to Confidential Information which: (c) (d) prior to disclosure is in the public domain or subsequent to disclosure to the party becomes part of the public domain other than as a result of an unauthorised act or failure to act by that party; is received by a party from a third party without any obligation to hold in confidence and which has not been obtained by that third party directly or indirectly from any party; is independently developed by an employee or officer of the party owing the obligation of confidentiality while having no knowledge of the Confidential Information; or the party claiming confidentiality has agreed may be disclosed by that other party. 8.4 Each party must use its reasonable efforts to ensure that its respective employees, directors, officers and advisers who participate in the Project or acquire access to Confidential Information, must be subject to obligations of confidentiality commensurate with the obligations imposed under this clause 8. Page 7
8.5 The Recipient consents to the Movember Foundation and NBCF identifying the Key Persons, and Recipient, a lay description of the Project, and Project results to their respective supporters, including for fundraising purposes. 9. PUBLICITY AND RECOGNITION 9.1 The Recipient must ensure that all public statements and communications including without limitation all media releases, social media updates, website updates or posts, stakeholder EDMs, print / broadcast ads, publications and conference presentations and quarterly or annual reports relating to the Project and any updates to the Project acknowledge the funding provided by Movember Foundation and NBCF in accordance with the Movember Foundation Branding Guidelines and the NBCF Branding Guidelines. 9.2 The Recipient must advise Movember Foundation and NBCF of, and involve Movember Foundation and NBCF in, the preparation or planning of all such statements and communications referred to in paragraph 9.1. In addition all such statements must, where possible, be provided to Movember Foundation and NBCF for approval at least 5 days prior to any such public statement or media release. 9.3 Movember Foundation and NBCF may publicise the awarding of the Funding and the Project including by releasing the Recipient and Key Persons names, amount of Funding and summary description of the Project, through a variety of media including without limitation through Movember Foundation and NBCF s websites and social media. 9.4 Movember Foundation and NBCF grant to the Recipient a non-exclusive nontransferable royalty free licence during the Term to use the Movember Foundation Marks and NBCF Marks respectively, strictly for the purposes of this Agreement and strictly in accordance with each of the Movember Foundation and NBCF Branding Guidelines. 9.5 Recipient must use best endeavours to disseminate their findings through peerreviewed publications such as journals, manuscripts and books to maximise the impact and utility of the Project. 9.6 Recipient must use best endeavours to ensure that all final peer-reviewed journal manuscripts that arise from the Project (in whole or in part) are made freely available through the relevant publisher s website or an online repository within six months of publication. 9.7 Recipient must not engage, and must ensure that its employees do not engage, in conduct which in the reasonable opinion of Movember Foundation and NBCF is likely to bring either or both of Movember Foundation and NBCF into disrepute or is otherwise detrimental to Movember Foundation, NBCF or their respective fundraising activities. 9.8 The Recipient must actively promote and encourage participation in the Movember Foundation Campaign and the NBCF Campaign amongst Recipient employees, partners, networks, ambassadors and customers. 10. RECORDS AND REPORTING 10.1 Recipient must maintain such financial and operational records as required to establish its compliance with the terms of this Agreement, and must allow Movember Foundation, NBCF or their nominated third party representative access to inspect such records on prior written request. Page 8
10.2 The Recipient must in good faith prepare and provide to Movember Foundation and NBCF the following reports: (c) Progress Reports, being: (1) annual progress reports detailing the progress of the Project in each 12 month period from the commencement of the Project, (or anniversary of commencement) for each year of the Project; (2) a final report on the date six months after the Project is completed (3) a follow-up report 18 months after the end of the Term or the completion of the Project, whichever is earlier in each case containing accurate and complete information on: (4) conduct of the Project; (5) progress in achieving the objectives of the Project as described in Schedule 2 including progress in achieving the Milestones, any delays or anticipated delays and their projected impact on the Project; (6) any technical problems encountered by the Recipient in relation to the Project and progress in resolving those problems; and (7) any other matters reasonably requested by Movember Foundation or NBCF; Annual Financial Report, prepared in accordance with Australian Accounting Standards containing accurate and complete information relating to each 12 month period from the commencement of the Project, (or anniversary of commencement) for each year of the Project including: (1) a financial statement specifying the total amount of the Funding received and expended; and (2) certification by the Chief Financial Officer of the Recipient or their delegate that the Funding was expended in accordance with this agreement, Audited Financial Statement, prepared by an independent auditor in compliance with Australian Auditing Standards and containing accurate and complete information, for the entire period up to and including the earlier of the end of the Term and the completion of the Project, including: (1) a detailed statement of receipts and expenditure in respect of the Funding received by the Recipient and expended by the Recipient for the Project; (2) a definitive statement as to whether the financial accounts are complete and accurate; and (3) a statement of the balance of the Recipient s bank account/ ledger relating to the Project, (the Reports). 10.3 The Recipient must provide the Reports to NBCF and Movember Foundation at the specified times both electronically and in hard copy. 10.4 If the Recipient does not provide a Report in accordance with this clause 10, Movember Foundation and NBCF may suspend payment of Funding until that Report is provided in accordance with this clause. Page 9
11. INTELLECTUAL PROPERTY 11.1 Recipient warrants that the carrying out of the Project, the use of the Background IP, the Project Materials, and Intellectual Property Rights created or developed during the Project, will not infringe the Intellectual Property Rights of any third party. 11.2 Recipient is responsible, either alone or in conjunction with any relevant third parties, for the identification, protection and management of any Intellectual Property Rights arising from the Project and the Project Materials. 11.3 Ownership of Background Intellectual Property contributed by the Recipient, Movember Foundation or NBCF for the purposes of performing its obligations under this Agreement will remain with the contributing party. 11.4 With the exception of any items listed in the relevant Project schedule and the licence granted under clause 11.5, Movember Foundation and NBCF will not hold any right, title or interest (including all Intellectual Property Rights) in the Project Materials. 11.5 The Recipient grants or will procure the grant to Movember Foundation and NBCF a worldwide, perpetual and irrevocable royalty-free licence to use, adapt and disseminate (including to third parties) the Project Materials (including all Intellectual Property Rights), strictly for the purposes of furthering Movember Foundation and NBCF's charitable objectives. 11.6 If the Recipient believes that any such Intellectual Property Rights (or Project Materials) has the potential for commercial exploitation, the Recipient must notify the Movember Foundation and NBCF, including details of the potential. 11.7 The Recipient must notify Movember Foundation and NBCF before the Recipient commences or licences (or agrees to commence or licence) any commercial exploitation of the Project Materials (or Intellectual Property Rights arising from the Project). 11.8 If the Project Materials (or Intellectual Property Rights arising from the Project) are commercialised, the Recipient: (c) (d) must keep Movember Foundation and NBF informed on a regular basis (no less frequently than every 6 months) of progress; must ensure that the Project Materials and Intellectual Property Rights are commercialised for the public benefit and resulting products and services made accessible to the public at a reasonable cost, including by ensuring that access to the Project Materials and Intellectual Property Rights (and resulting products and services) are affordable by public health institutions and not for profit health organisations for general use, and not in a manner which is unduly restrictive or prevents further research and development towards the treatment of, or a cure for, prostate cancer or breast cancer; must as between the Recipient, Movember Foundation and NBCF, pay all Commercialisation Costs; and must pay 5% of all Net Sales to Movember Foundation and 5% of all Net Sales to NBCF until such time as the amounts paid to Movember Foundation and NBCF in aggregate equal five times the amount of the Funding. 11.9 The Recipient indemnifies and agrees to keep indemnified the other parties and their respective directors, officers, employees, agents and contractors ( those indemnified ) from and against any and all liability, loss, harm, damage, cost or expense (including Page 10
legal fees on a full indemnity basis) howsoever arising that those indemnified may suffer, incur or sustain: (c) as a result of any breach of the warranties given in clause 11.1 of this Agreement by the Recipient; in connection with any breach or negligence by the Recipient, or any of its Research Personnel, in connection with this Agreement, including a failure by the Recipient to ensure that any Research Personnel, or relevant third party who has provided an undertaking in connection with this Agreement, complies with this Agreement or performs the Project; or in connection with any third party claim relating to the Project or any part of the Project, including its conduct or outcome, 12. INSURANCE 12.1 Recipient must: except to the extent any such liability was caused by Movember Foundation or NBCF. (c) (d) take out and maintain with a reputable insurer a public liability insurance policy to an amount of at least $10 million per claim; take out and maintain with a reputable insurer a professional indemnity insurance policy to an amount of at least $5 million per claim, which expressly covers any indemnity given under this agreement; provide a certificate of currency in relation to the above policies; and maintain the above polices or obtain run-off cover for a minimum of seven years following expiry or termination of this Agreement. 13. TERMINATION 13.1 Movember Foundation and NBCF may together terminate this Agreement on written notice to the Recipient if the Recipient: (c) (d) suffers any insolvency event, including without limitation having a receiver or administrator appointed or ceasing or threatening to cease operations; or commits a material breach of this Agreement that is not capable of being remedied; or commits a material breach of this Agreement and does not remedy that breach to the reasonable satisfaction of both Movember Foundation and NBCF within 14 days of the Recipient receiving written notice from Movember Foundation and NBCF specifying the breach; or in Movember Foundation s or NBCF s reasonable view, or any Research Personnel involved in the Project, has engaged in misconduct or inefficiency (including scientific misconduct or fraud, or failure to conduct the research or project in accordance with the principles and standards required by this Agreement); or Page 11
(e) in Movember Foundation s or NBCF s reasonable view, has not made sufficient progress towards necessary milestones in relation to prostate or breast cancer. 13.2 The Recipient may terminate this Agreement on written notice to Movember Foundation and NBCF if Movember Foundation or NBCF: (c) suffers any insolvency event, including without limitation having a receiver or administrator appointed or ceasing or threatening to cease operations; or commits a material breach of this Agreement that is not capable of being remedied; or commits a material breach of this Agreement and does not remedy that breach to the reasonable satisfaction of the Recipient within 14 days of the breaching party receiving written notice from the Recipient specifying the breach. 13.3 If any or all of the Key Persons; cease to be employed by Recipient and are transferring to another organisation that agrees to assume the Project, then Movember Foundation and NBCF may require Recipient to enter into a novation agreement to transfer this Agreement to the relevant Key Person s new organisation, and take all other steps reasonably requested by Movember Foundation and NBCF to transfer the conduct of the Project to the new organisation, including providing a report containing an acquittal of the Funding paid and any amount not expended as at the date of novation. The Recipient hereby consents to disclosure of this agreement to the new organisation as part of this transfer process; or are otherwise unable to engage in the Project as envisaged by this Agreement, then Movember Foundation and NBCF may terminate this Agreement by written notice to the Recipient. 14. EFFECT OF TERMINATION 14.1 Termination of this Agreement for any reason will be without prejudice to the continuing enforceability of any rights or remedies of the parties accrued at the time of termination. 14.2 Unless agreed otherwise, upon termination of this Agreement the parties will continue to be bound by the obligations, representations and warranties given in clauses 8 (Confidentiality), 11 (Intellectual Property), 12 (Insurance) and any other clauses which, by their nature, are intended to survive termination. 14.3 On termination, the Recipient must within 14 days refund to Movember Foundation and NBCF any Funding paid to the Recipient and not expended, or not irrevocably committed to expend in performance of the Project, and within 60 days provide the final Reports in accordance with clause 10. 15. DISPUTE RESOLUTION 15.1 If a dispute arises out of this Agreement, including any question regarding its existence, validity or termination (Dispute), a party must comply with this clause 15 before starting arbitration or court proceedings (except proceedings for interlocutory relief). 15.2 A party claiming a Dispute has arisen must give the other parties notice setting out details of the Dispute. Page 12
15.3 During the 28 days after a notice is given under clause 15.2 (or longer period if the parties to the Dispute agree in writing), each party to the Dispute must use its reasonable efforts to resolve the Dispute. 15.4 If the parties cannot reach a resolution within 28 days of the Dispute being notified to the other parties under clause 15.2 then the Dispute must be referred to mediation. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement by the Chair of LEADR, (ACN 008 651 232, Level 1, 13-15 Bridge Street, Sydney NSW 2000; telephone: 02 9251 3366, fax: 02 9251 3733, email: leadr@leadr.com.au) or the Chair's designated representative. Each party will bear their own costs in connection with mediation, except that the mediator s fee, fees for mediation rooms, shared equipment, facilities and services for mediation will be shared equally between the parties. 16. NOTICES 16.1 Any notice, demand, consent or other communication (Notice) given or made under this Agreement must be in writing and signed by a person duly authorised by the sender and delivered to the intended recipient by pre-paid post or by hand or email to the notice details for the relevant party specified in Item 2 of Schedule 1 or to the address or email number last notified by the intended recipient to the sender. 17. GOODS AND SERVICES TAX 17.1 If, by operation of the GST Law, any Supply under this Agreement is regarded as a taxable supply and the Consideration for that Supply is not stated to be inclusive of GST, the Supplier will be entitled to recover from the Recipient, an amount equivalent to the GST payable by the Supplier in relation to the Supply. 17.2 If GST is payable, the Supplier will provide the Recipient with a tax invoice or a document adequate to entitle the Recipient to claim an input tax credit. 17.3 In this clause: Consideration bears the meaning attributed to that term in the GST Law; GST Law means A New Tax System (Goods and Services Tax) Act 1999 and any substantially similar legislation when it is passed into law and which may operate at any time during the term of this Agreement; Recipient means a person that has received a Supply; Supplier means a person that has made or provided a Supply; and Supply bears the meaning attributed to that term in the GST Law. 18. MISCELLANEOUS 18.1 This Agreement, including the Schedules together constitute the entire agreement between the parties with respect to its subject matter and supersede all prior agreements and understandings between the parties in connection with it. 18.2 The rights and obligations of the parties under this Agreement are personal. They cannot be assigned, encumbered or otherwise dealt with without the prior written consent of the other parties (not to be unreasonably withheld). Page 13
18.3 The terms of this Agreement may only be varied by written agreement between the parties. The failure of a party at any time to require performance of any obligation under this Agreement is not a waiver of that party's right to insist on performance of, or claim damages for breach of, that obligation or any other obligation. 18.4 This Agreement does not create a relationship of employment, agency or partnership between the parties. 18.5 Each party must pay its own costs in respect of the Agreement and the documents and transactions contemplated under it. Each party must, at its own expense, whenever reasonably requested by any other party, promptly do or arrange for others to do, everything reasonably necessary or desirable to give full effect to this Agreement. 18.6 Part or all of any provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions of this Agreement continue in force. 19. GOVERNING LAW 19.1 This Agreement will be governed by and construed in accordance with the law for the time being in force in Victoria, Australia and each party submits to the exclusive jurisdiction of the courts of Victoria, Australia and of the courts of appeal from them. Page 14
EXECUTED AS AN AGREEMENT Signed for and on behalf of Movember Group Pty Ltd as trustee for Movember Foundation by its duly authorised officer: Name Signature in the presence of: Witness Name Witness Signature Date Signed for and on behalf of National Breast Cancer Foundation by its duly authorised officers: Name Signature Name Signature in the presence of: Witness Name Witness Signature Date Signed for and on behalf of [insert Institution name] by its duly authorised officer: Page 15
Name Signature in the presence of: Witness Name Witness Signature Date Page 16
SCHEDULE 1 - DETAILS Item 1 Commencement Date and Initial Term Item 2 Notice details 1 July 2017 3 years For Movember Foundation: 233 Punt Road, Richmond, VIC 3121, Australia For contractual notices: Attention General Counsel Email: generalcounsel@movember.com For project reporting: Attention Director, Global Biomedical Research Programs Email: mark@movember.com For NBCF: Level 9, 10 Barrack Street, Sydney, NSW 2000 For administrative matters: Attention - Natacha Herlemann Grants Administrator, Research Investment natacha.herlemann@nbcf.org.au and research@nbcf.org.au For scientific matters Attention: Galina Schevzov Senior Manager, Research Investment Email: galina.schevzov@nbcf.org.au For Recipient: [Insert Notice Details] Item 3 Movember Foundation Marks 1. MOVEMBER (Australian Trade Mark Registration No 1462968) 2. CHANGING THE FACE OF MENS HEALTH 3. M device (Australian Trade Mark Registration No 1130605): Page 17
NBCF Marks 1. NATIONAL BREAST CANCER FOUNDATION (Australian Trade Mark Registration No 1112084). 2. Ribbon device (Australian Trade Mark Registration No 804429): 3. NBCF (Australian Trade Mark Registration No 1405074). Collaborating Institution [Details to be inserted] Page 18
SCHEDULE 2 PROJECT AND FUNDING [TO BE COMPLETED BY PARTIES WHEN RECIPIENT IDENTIFIED] Item 1 KEY PERSONS Name: Title: Contact details: Email: Phone: Item 2 PROJECT Project Name: [Insert Project name] Project Lay Summary [Insert high level summary of Recipient s Project] Milestones [Insert Project milestones] Item 3 FUNDING The Funding for this Project to be provided in equal proportions by the Movember Foundation and NBCF over a 3-year period as set out below: Movember Funding Year 1 1 st instalment Year 1 2 nd instalment Year 2 1 st instalment Year 2 2 nd instalment Year 3 1 st instalment Timing Within 30 days of execution of Agreement. DATE: Six month after payment of Year 1 1 st instalment DATE: Within 30 days of receipt of Year 1 Annual Progress Report and Year 1 Annual Financial Report DATE: Six month after payment of Year 2 1 st instalment DATE: Within 30 days of receipt of Year Amount (AUD excl. of GST) Page 19
Year 3 2 nd instalment NBCF Funding Year 1-1 st instalment Year 1-2 nd instalment Year 2-1 st instalment Year 2-2 nd instalment Year 3-1 st instalment Year 3-2 nd instalment 2 Annual Progress Report and Year 2 Annual Financial Report DATE: Six month after payment of Year 3 1 st instalment DATE: Within 30 days of execution of Agreement. DATE: Six month after payment of Year 1 1 st instalment DATE: Within 30 days of receipt of Year 1 Annual Progress Report and Year 1 Annual Financial Report DATE: Six month after payment of Year 2 1 st instalment DATE: Within 30 days of receipt of Year 2 Annual Progress Report and Year 2 Annual Financial Report DATE: Six month after payment of Year 3 1 st instalment DATE: The Recipient will invoice each of the Movember Foundation and NBCF for the amounts specified above on the dates specified. Payment terms will be 30 days. Movember Foundation and NBCF will each provide the Funding as required to the Recipient s bank account (upon receipt of an invoice), details below: Bank Account Name: Bank Name: Either SWIFT or IBAN (as applicable for international transfers): BSB or ABA Routing Number: Account No: Item 4 PERFORMANCE MEASUREMENT Performance measurements include annual reporting (see schedule below). Page 20
Reporting schedule Report When required Due date Progress Reports Annual Progress Reports Final Progress Report Follow-up Report Annual Financial Report Annual Financial Report Annually 12 months from the commencement date No later than 6 months after the end of the Term or the completion of the Project, whichever is earlier 18 months after the end of the Term or the completion of the Project, whichever is earlier Annually (or upon written notice given by NBCF or Movember Foundation) First report due: [Insert Date] Second report due: [Insert Date] [Insert Date] [Insert Date] First report due: [Insert Date] Second report due: [Insert Date] Third report due: [Insert Date] Audited Financial Statement Audited Financial Statement No later than 6 months after the end of the Term or the completion of the Project, whichever is earlier [Insert Date] Page 21
SCHEDULE 3 EXECUTIVE COMMITTEE TERMS OF REFERENCE In these Terms of Reference, defined terms have the meanings assigned to them in the Collaboration Agreement, unless stated otherwise. 1 Role of the Executive Committee 1.1 The Executive Committee is an advisory committee to the Movember Foundation and NBCF and has been convened to oversee implementation, direct and provide advice where appropriate on the Project. 2 Composition and administration 2.1 The first members of the Executive Committee will be: 2.1.1 Paul Villanti Executive Director, Programs, Movember Foundation; 2.1.2 Dr. Mark Buzza Director, Global Biomedical Research Program, Movember Foundation; 2.1.3 Professor Sarah Hosking Chief Executive Officer, NBCF; and 2.1.4 Dr. Alessandra Muntoni Director of Research Investment, NBCF. 2.2 Changes to the members of the Executive Committee can only be made by unanimous agreement of all of the existing members of the Executive Committee at the time of the proposed change. 3 Meetings 3.1 The Executive Committee will meet as often as they consider necessary in order to carry out their duties and responsibilities as defined by these terms of reference. Under normal circumstances, the Executive Committee should meet at least three times each financial year. For convenience, meetings may take place via teleconference or video conference. 3.2 Papers for all meetings should be circulated, if practical, at least five days before the relevant meeting. 3.3 Draft minutes of meetings (for consideration and approval at the next relevant meeting) should be circulated within 21 days following each meeting. 4 Specific Responsibilities of the Executive Committee 4.1 The Executive Committee will: 4.1.1 Review and recommend to the Project Funders the budget for the Project, subject to the availability of funds; 4.1.2 Manage any decision making under the Project; 4.1.3 Ensuring that the Recipient is operating within a functional ethical and legal framework; 4.1.4 Provide oversight of the execution and delivery of the Project, and ensuring milestones are achieved; Page 22
4.1.5 Reviewing and commenting on Project progress and close out reports provided by the Recipient. 4.1.6 As far as possible, foster dissemination of findings and discoveries in real time to the research community; 4.1.7 Report to the Movember Foundation Board and NBCF Board on the progress of the Project. 5 Decisions and powers 5.1 The Executive Committee will endeavour to make decisions on a consensus basis. If this is not possible in relation to any particular issue, then the Executive Committee may determine the issue by a vote. A simple majority will be required to determine any issue. 5.2 If the Executive Committee cannot determine a particular issue by simple majority within 10 Business Days of the issue being referred to it, Movember Foundation and NBCF will seek to resolve the issue by mediation, in accordance with the Mediation Guidelines of Australian Disputes Centre Ltd, by a mediator appointed by that body. Each party agrees to bear the costs of mediation in equal shares. If, following mediation, the parties are still unable to resolve the issue, then either party may commence court proceedings to resolve the dispute, and if the issue relates to an exercise of a right under this agreement, neither party may exercise that right. A party may not otherwise commence proceedings, except where a party is seeking urgent interlocutory relief. 5.3 The Executive Committee will have such powers as expressly given in these Terms of Reference and in any Agreement in relation to the Project. If there is no express power, then the Executive Committee only has the power to make recommendations to the Funders, the Movember Foundation and NBCF. Page 23
Schedule A Undertaking by Collaborating Institution This Deed Poll is made on the...day of..., 20... by [insert Collaborating Institution] ABN [insert ABN] (the Collaborating Institution) of [insert Collaborating Institution address]. In Favour of: [insert Administering Institution] ABN [insert ABN] or any other administering institution to whom the Agreement is validly novated (the Administering Institution) and the National Breast Cancer Foundation ABN 37 144 841 707 (NBCF) and the Movember Group Pty Ltd as trustee for the Movember Foundation ABN 48 894 537 905 (Movember). RECITALS 1 The Collaborating Institution has been named as a Collaborating Institution in a Movember Foundation National Breast Cancer Foundation Prostate and Breast Cancer Research Collaboration Initiative Application (the Grant Application). 2 This Grant Application resulted in an agreement between Movember, NBCF and the Administering Institution (the Agreement), which is annexed to this undertaking. 3 Under this Undertaking, the Collaborating Institution undertakes to comply with the Agreement on the terms of this undertaking. UNDERTAKING REGARDING THE AGREEMENT AND THE GRANT APPLICATION: (Compliance with Agreement) The Collaborating Institution undertakes to comply with the obligations on the Administering Institution, including in relation to the Project, as set out in the Agreement and the Grant Application, to the extent they relate to those parts of the Project in which the Collaborating Institution is involved, as if those obligations were directly imposed on the Collaborating Institution, including, obligations in respect of: (1) performing and ensuring its personnel perform the Project in accordance with the Agreement, and Grant Application; (2) maintaining adequate insurance policies and providing evidence of such policies to the Administering Institution on request; (3) complying with NBCF s, Movember s and the Administering Institution s directions on expenditure, commitment and repayment of funds; (4) complying with NBCF s, Movember s and the Administering Institution s directions in relation to its research personnel; (5) ensuring that the Collaborating Institution has the rights necessary to, and in each case permit the Administering Institution to, use any Background Intellectual Property of the Collaborating Institution or any of its research personnel necessary to conduct the Project, or Project Materials and Intellectual Property Rights developed or created by the Collaborating Institution or its research personnel in the course of or in connection with the Project; (6) obtaining prior to commencing the Project at its site and keeping current during the Project any notifications, approvals or institutional approvals needed by the Collaborating Institution to carry out the Project, including as required by the Agreement; (7) preparing and submitting reports to the Administering Institution; (8) keeping any Confidential Information confidential, and not disclosing or using such Confidential Information other than on the terms of the Page 24
(d) Agreement. The Collaborating Institution consents to the disclosure of this Undertaking to any new administering institution; (9) acknowledging Movember s and NBCF s support in respect of the Project and complying with Movember s and NBCF s reasonable requests to promote awareness of and raising funds for prostate cancer research, breast cancer research and prostate cancer or breast cancer related projects; (10) maintaining full, clear and accurate records and accounts in respect of the Grant, the Project and any Intellectual Property Rights which are used or developed by the Collaborating Institution in the Project; (11) keeping the Administering Institution advised of any legal proceedings or commercial, technical or financial capacities that may have an adverse effect on the ability of the Collaborating Institution to perform its obligations under the Agreement; (12) complying with anti-tobacco polices of NBCF; (13) providing access to materials and premises; (14) complying with acknowledgement and publication guidelines; (15) complying with the dispute resolution procedures set out in the Agreement (16) provision of indemnities, as set out below; and any other activity required to enable the Administering Institution to meet its obligations under the Agreement. For the avoidance of doubt, and without limiting the Collaborating Institution s obligations pursuant to this undertaking, the Collaborating Institution must comply with the following provisions of the Agreement as if in those provisions the words Administering Institution was replaced with Collaborating Institution : 3.8, 5, 6, 7, 8, 9, 10, 11, 12, and 15. (Reports) If the Collaborating Institution receives any Funding, the Collaborating Institution undertakes in good faith to prepare and provide to Movember Foundation and NBCF an Annual Financial Report, prepared in accordance with Australian Accounting Standards for each year in which the Collaborating Institution receives any Funding including: (1) a financial statement specifying the total amount of the Funding received by the Collaborating Institution and expended by the Collaborating Institution; (2) certification by the Chief Financial Officer of the Collaborating Institution or their delegate that the Funding was expended in accordance with the Agreement. (Warranties) The Collaborating Institution warrants and undertakes that at the time of entry into this deed poll and throughout the Term, it is not an applicant and will not be an applicant for, or a recipient of funds from, or an employee or an employer of an entity that is an applicant for or a recipient of funds from: (1) the tobacco industry; (2) The Smoking and Health Research Foundation of Australia; or (3) any organisation associated with the tobacco industry or deemed by NBCF, in writing to the Collaborating Institution, to be associated with the tobacco industry, regardless of whether the funds are received directly or indirectly, including through a collaborator or where applicable, through a particular faculty or school of the Collaborating Institution or by any other means, or whether for health related research, projects or services (wherever in the institution or entity such research or projects may be undertaken or services provided or supported). Page 25