SUBCONTRACT UQ engaging Subcontractor Drafting Note Please delete before sending outside UQ The specific details for this contract need to be updated. These details are highlighted in yellow and square brackets. Specific details about the project are included in the schedule. Use this document when UQ is subcontracting from a head agreement. There are two options – the direct imposition of the terms of the head agreement, or passing on the terms but not directly imposing those terms. This document contains three options for ownership of Project IP/Material: a) Ownership by UQ; b) Ownership by funding body and licence to UQ; c) Ownership by inventive contribution. Please revert to Research Legal if edits or amendments are required. RPM Template _ Shortform subcontract (UQ as Contractor engaging subcontractor). 1 Subcontract agreement schedule Commencement Date [Insert "The date the last of the parties signs this agreement" or the date on which the services commenced being provided] Expiry Date [Insert the date the agreement ceases] Subcontractor [Insert full legal name of entity] [Insert ACN/ABN of entity] of [Insert address of entity] Client [Insert full legal name of entity] [Insert ACN/ABN of entity] of [Insert address of entity] Head Agreement The agreement titled “[Insert title of agreement]” between UQ and the Client dated [Insert date]. Project [Insert title of project] Subcontracted Activities and Deliverables [Insert a description of the services to be performed by the subcontractor. Ensure that any deliverables required are specifically described.] Fees [Insert fee structure e.g.] Milestone Milestone due date Invoice due date (if any) Fees payable on completion of Milestone (Excluding GST) TOTAL Specified Personnel Address for service of notices: [Insert the names of any personnel of the subcontractor that are required to perform the services] UQ Subcontractor Name: Ian Harris Name: Position: The Director, Research Partnerships Position: Address: The University of Queensland Brisbane Qld 4072 Address: Telephone: 07 3365 3559 Telephone: Facsimile: 07 3365 8383 Email: Facsimile: RPM Template _ Shortform subcontract (UQ as Contractor engaging subcontractor). 2 The Subcontractor has agreed to perform the Subcontracted Activities on the basis of the Subcontract agreement terms and conditions annexed to this Schedule (or if no terms are annexed, the Subcontract agreement terms and conditions made available by UQ from time to time). Execution Signed as an agreement. SIGNED for and on behalf of THE UNIVERSITY OF QUEENSLAND by its duly authorised officer: in the presence of: .............................................. .............................................. Director Witness (Print Name) Research Partnerships .............................................. Date: SIGNED for and on behalf of [Insert full legal name of entity] by: .............................................. .............................................. Director / Secretary Director .............................................. .............................................. (Print Name) (Print Name) Date: Date: RPM Template _ Shortform subcontract (UQ as Contractor engaging subcontractor). 3 Subcontract agreement terms and conditions Background A UQ entered into the Head Agreement with respect to the Project. B UQ wishes to subcontract the performance of the Head Agreement to the Subcontractor. C The Subcontractor has agreed to perform the Head Agreement and undertake the Subcontracted Activities and provide the Subcontractor’s contributions in accordance with the terms and conditions of this Agreement. Corporations Act means Corporations Act 2001 (Cth). Deliverables means the deliverables specified in the Schedule (if any). Expiry Date means the date specified in the Schedule. Fees means the fees specified in the Schedule. Head Agreement means the head agreement specified in the Schedule. Intellectual Property means all industrial and intellectual property rights anywhere in the world, whether registered or unregistered, including: Operative terms 1 Definitions and interpretation 1.1 Definitions In this Agreement: Agreement Background IP means this agreement as amended or replaced by agreement of the parties in writing from time to time. (a) patent rights, trade mark rights, copyright, plant breeders’ rights and rights in relation to inventions, trade names, business names, company names, indications of origin, designs, plant varieties, semiconductors, circuit layouts, confidential information and knowhow; (b) any right of registration of, provisional applications for, claim of priority from, continuation of or division of such rights; and (c) all other intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation 1967. of a party means Intellectual Property that is: (a) in existence at the Commencement Date; (b) created or developed by that party during the Term independently of the Subcontracted Activities; or (c) assigned or licensed to that party during the Term independently of the Subcontracted Activities, and made available by that party for the purpose of performing the Subcontracted Activities. Client means the client specified in the Schedule. Milestone means the milestones specified in the Schedule. Commencement Date means the date specified in the Schedule. Moral Rights Confidential Information means the terms of this Agreement and any information disclosed by UQ to the Subcontractor in relation to the Project, except for information: means moral rights as described in Part IX of the Copyright Act 1968 (Cth) and any analogous rights arising under statute that exist, or may come to exist, anywhere in the world. Project means the project specified in the Schedule. Activities means the activities contemplated by the Head Agreement to be performed by UQ for the Client. Specified Personnel means each key individual of the Subcontractor specified in the Schedule and any replacement personnel contemplated by clause 4.1(b). Subcontracted Activities means the activities specified in the Schedule. Subcontractor means the subcontractor specified in the Schedule. (a) (b) Contract IP that the Subcontractor can show was already known to, in the rightful possession of or independently developed by the Subcontractor in good faith and free of any obligation of confidence; or that the Subcontractor can show is in the public domain otherwise than by a breach of this Agreement or other obligation of confidence. means all Intellectual Property created in the course of or arising from the performance of the Subcontracted Activities. RPM Template _ Shortform subcontract (UQ as Contractor engaging subcontractor) 4 Term means the term contemplated by clause 9.1. (B) not to do anything that shall cause UQ to be in breach of its obligations under the Head Agreement; and UQ means The University of Queensland ABN 63 942 912 684 a body corporate constituted under the University of Queensland Act 1998 (Qld) of Brisbane in the State of Queensland 4072. (C) it will do or omit to do anything requested by the Client to UQ with respect to any publications arising from the Subcontracted Activities including acknowledgement of the Client’s receipt of the Activities. [END OPTION 2] 1.2 Interpretation (c) In this Agreement: (a) (b) (c) no rule of construction applies to the disadvantage of the party that drafts this Agreement on the basis that the party suggested the relevant drafting; references to a party mean UQ or the Subcontractor and references to the parties mean both of UQ and the Subcontractor; and words such as “includes” and “including” do not impose any limitation on the construction of general language that is followed by specific examples. 2 Activities 2.1 Participation 2.2 To the extent of any inconsistency between: (i) the terms of the Head Agreement; and (ii) other provisions of this Agreement, as between the parties the terms of the Head Agreement will take precedence. 3 Fees 3.1 Payment of Fees Subject to performance of the Subcontracted Activities in accordance with this Agreement and clause 3.2(a), UQ must pay the Fees to the Subcontractor in accordance with the Schedule. 3.2 Head Agreement (a) The Subcontractor must perform the Subcontracted Activities (including by meeting the Milestones and providing any Deliverables) and actively cooperate to enable UQ to perform the Activities for the Client in accordance with the Head Agreement. (a) If the Client fails to pay the amounts contemplated by the Head Agreement to UQ at the times contemplated by the Head Agreement then the obligation on UQ to pay the Fees under clause 3.1 is deferred until such time as those amounts have been paid. (b) The Subcontractor must exercise due care and skill in performing the Subcontracted Activities and take all reasonable steps to assist UQ to minimise delay in completing the Activities. (b) For clarity, clause 3.2(a) does not apply to any failure of the Client to pay the amounts contemplated by the Head Agreement if that failure arises from a breach by UQ of the Head Agreement that is not contributed to by the acts or omissions of the Subcontractor. Terms required under the Head Agreement [OPTION 1: Pass through of head agreement terms but not direct imposition.] (a) 3.3 Invoicing (a) The Subcontractor must provide an invoice to UQ for the Fees at the times specified in Schedule 2 (if any). (b) Notwithstanding clause 3.1, UQ is not obliged to pay the Fees until 30 days after receipt of a valid invoice which contains sufficient reasonable and specific details to enable the work to which the invoice applies to be identified. The Subcontractor acknowledges that: (i) UQ has entered into the Head Agreement with the Client and that UQ is bound by the terms of the Head Agreement; and (ii) it has reviewed the Head Agreement and agrees: (A) to assist UQ to comply with the terms of the Head Agreement; 4 Resources 4.1 Availability of Specified Personnel (B) not to do anything that shall cause UQ to be in breach of its obligations under the Head Agreement; and (C) it will do or omit to do anything requested by the Client to UQ with respect to any publications arising from the Subcontracted Activities including acknowledgement of the Client’s receipt of the Activities. [END OPTION 1] (a) The Subcontractor will make the Specified Personnel available to perform the Subcontracted Activities at the times and with the resources specified in the Schedule (if any) including for the average number of working days per month. (b) The Subcontractor agrees that, if any Specified Personnel become unavailable to perform the Subcontracted Activities, then the Subcontractor must: (i) immediately notify UQ of the unavailability; and (ii) replace the Specified Personnel with personnel which have: [OPTION 2: Direct imposition of head agreement terms.] (b) The Subcontractor acknowledges that: (i) UQ has entered into the Head Agreement with the Client and that UQ is bound by the terms of the Head Agreement; and (A) the time commitment, qualifications and competency to perform the Activities; and (ii) it has reviewed the Head Agreement and agrees: (B) similar expertise and ability to those of the Specified Personnel they are to replace; and (A) to be bound by the terms of the Head Agreement to the extent that it applies to the Subcontracted Activities as though any reference to the Client was a reference to UQ and any reference to UQ was a reference to the Subcontractor; (iii) 4.2 RPM Template _ Shortform subcontract (UQ as Contractor engaging subcontractor) notify UQ of the name and qualifications of the replacement personnel within 14 days of the replacement. Ethical approvals The Subcontractor must ensure that it obtains, maintains 5 and complies with all ethical clearances and regulatory approvals necessary or desirable to perform the Subcontracted Activities during the Term. 5 Background IP 5.1 Licence The Subcontractor grants UQ a world-wide, perpetual, nonexclusive, non-transferable, royalty free licence to use the Subcontractor’s Background IP: (a) (b) 5.2 for the purpose of receiving the benefit of the Subcontracted Activities in accordance with this Agreement and performing the Activities in accordance with the Head Agreement (including the right to sublicense to the Client); and 6.3 Warranty (c) 5.4 to the best of the Subcontractor’s knowledge as at the date of this Agreement (without having made any enquiries), the grant of the licence contemplated by clause 5.1 by the Subcontractor and use of the Subcontractor’s Background IP as contemplated by clause 5.1 will not infringe the Intellectual Property of any third party; 6.4 the Subcontractor is not aware of any allegation that the grant of the licence contemplated by clause 5.1 by the Subcontractor or use of the Subcontractor’s Background IP as contemplated by clause 5.1 infringes the Intellectual Property of any third party; and except with the prior approval of UQ(which must not be unreasonably withheld or delayed), the Subcontractor will not assign, encumber or otherwise deal with the Background IP of the Subcontractor in a manner that would prohibit or reduce use of that Background IP in the performance of the Activities for the Client. Warranty (a) to the best of that party’s knowledge as at the date of this Agreement (without having made any enquiries), the assignment contemplated by clause 6.1(b) by that party and use of the Contract IP created by that party will not infringe the Intellectual Property of any third party; and (b) that party is not aware of any allegation that the assignment contemplated by clause 6.1(b) by that party and use of the Contract IP created by that party infringes the Intellectual Property of any third party. Notice of allegations of infringement Licence (a) UQ hereby grants to the Subcontractor a nonexclusive, non-transferable, royalty free licence in Australia to use the Contract IP for the performance of the Subcontracted Activities under this Agreement during the Term. (b) For clarity the licence contemplated by clause 6.4(a) does not include the right to sublicense to any third parties. [OPTION 2: Contract IPR licensed to UQ.] 6.5 Licence The Subcontractor grants UQ a world-wide, perpetual, nonexclusive, non-transferable, royalty free licence to use the Subcontractor’s Contract IP for the purposes of: 6.6 Background IP protection and infringement (a) take all reasonably necessary steps to protect, maintain and enforce Background IP made available for the purpose of performing the Subcontracted Activities; (b) give the other party prompt notice of any infringement of Background IP that comes to that party’s attention; and (c) (a) receiving the benefit of the Subcontracted Activities in accordance with this Agreement; and (b) performing the Activities in accordance with the Head Agreement (including the right to sublicense to the Client). Warranty The Subcontractor represents and warrants to UQ that: (a) to the best of the Subcontractor‘s knowledge as at the date of this Agreement (without having made any enquiries), the grant of the licence contemplated by clause 6.5 by the Subcontractor and use of the Subcontractor’s Contract IP as contemplated by clause 6.5 will not infringe the Intellectual Property of any third party; (b) the Subcontractor is not aware of any allegation that the grant of the licence contemplated by clause 6.5 by that party or use of the Subcontractor’s Contract IP as contemplated by clause 6.5 infringes the Intellectual Property of any third party; and (c) except with the prior approval of UQ (which must not be unreasonably withheld or delayed), the Subcontractor will not assign, encumber or otherwise deal with the Contract IP of that party in a manner that would prohibit or reduce use of that Contract IP in the performance of the Activities for the Client. give the other party all assistance which is reasonably required by the other party to protect Background IP of the other party at the other party’s cost. Contract IP [OPTION 1: Contract IPR owned by UQ.] 6.1 Without limiting clause 12.1 the Subcontractor must sign all documents and perform all acts as required by UQ to give effect to the assignment contemplated by clause 6.1(a). [END OPTION 1] Each party must: 6 (c) Acknowledgement For clarity, other than as expressly set out in clauses 5.1, 6.1 and 6.4 nothing in this Agreement grants any licence or assignment of any Intellectual Property of a party to the other party. 5.5 To the extent necessary to give effect to clause 6.1(a) the Subcontractor assigns all right, title and interest in the Contract IP to UQ from the date such Contract IP is created. The Subcontractor must give UQ prompt notice of any allegation that the assignment contemplated by clause 6.1(b) or use of Contract IP infringes the Intellectual Property of any third party. The Subcontractor represents and warrants to UQ that: (b) (b) The Subcontractor represents and warrants to UQ that: Use (a) The parties agree that the Contract IP will be owned by UQ. if use of the Contract IP is reliant upon the Background IP, to the extent required for UQ to use the Contract IP for non-commercial research and teaching purposes (including the right to sublicense to the Client). The Subcontractor must ensure that it does not use the Background IP of UQ other than in accordance with UQ’s directions. 5.3 6.2 (a) Ownership RPM Template _ Shortform subcontract (UQ as Contractor engaging subcontractor) 6 6.7 Contract IP protection and infringement confidential; The Subcontractor must: (a) (b) take all reasonably necessary steps to protect, maintain and enforce the Subcontractor’s Contract IP; and give UQ prompt notice of any infringement of the Contract IP that comes to the Subcontractor’s attention. (b) keep the Confidential Information of the other party secure; (c) not use or copy the Confidential Information of the other party for any purpose other than to perform that party’s obligations or exercise that party’s rights under this Agreement; (d) only allow access to the Confidential Information of the other party to the officers, employees and agents of that party who have a need to know the Confidential Information and who are bound by obligations of confidence to that party to at least the standard contemplated by this clause 7; (e) not disclose the Confidential Information of the other party to any third party; and (f) not use the Confidential Information of the other party to the disadvantage of that other party. [END OPTION 2] [Option 3 – Ownership by inventive contribution] 6.1 Ownership (a) (b) (c) 6.2 The parties agree that the Contract IP will be owned by those Parties making inventive contribution in proportion to each Party's relevant inventive contribution to the particular Contract IP as tenants in common on creation. To the extent necessary to give effect to subclause 6.1(a), a Party having an Intellectual Property Right by effect of the law undertakes to assign all right, title and interest in the Contract IP to and do all that is reasonably necessary so that ownership and proportion at law and by equitable share is determined solely by application of clause 6.1(a). Without limiting clause 12.1, each Party must sign all documents and perform all acts as required by the owners of Contract IP to give effect to the assignment contemplated by clause 6.1(a) and 6.1(b). 7.2 Exception The obligations of confidence contemplated by clause 7.1 do not apply in relation to Confidential Information of another party to the extent that the Confidential Information is required to be disclosed under applicable law, but only if the disclosing party has given the other party all available notice to enable the other party to attempt to remove that requirement and the disclosing party only discloses the minimum information required. 7.3 Injunctive relief Each party acknowledges and agrees that: Warranty (a) if that party breaches this clause 7 in relation to another party’s Confidential Information, then that other party may suffer loss or damage as a result of that breach for which monetary remedies would not be adequate; and (b) if that party attempts to breach or threatens to breach this clause 7 in relation to another party’s Confidential Information, then that other party may seek injunctive relief including an injunction restraining that party from committing any breach of this Agreement without the necessity of proving that any actual loss or damage has been sustained or is likely to be sustained by that party. Each Party represents and warrants to each other Party that to the best of that Party’s actual knowledge as at the date of this Agreement (without having made any enquiries): 6.3 (a) the assignment contemplated by clause 6.1(b) by that Party and use of the Contract IP created by that Party will not infringe the Intellectual Property Rights or moral rights of any third party; and (b) it is not aware of any allegation that the assignment contemplated by clause 6.1(b) by that Party and use of the Contract IP created by that Party infringes the Intellectual Property Rights or moral rights of any third party. Notice of allegations of infringement Each Party must give the other Parties prompt notice if, or if any third party makes an allegation that, the assignment contemplated by clause 6.1(b) or use of Contract IP infringes the Intellectual Property Rights or moral rights of any third party. 6.4 [Consider whether this is an appropriate liability position given the commercial circumstances.] 8 Liability 8.1 Indemnity Licence The Subcontractor indemnifies UQ from and against, and is liable for, any loss or damage suffered or incurred by UQ in connection with: (a) To the extent of its ownership interest in the Contract IP , each party grants the other a worldwide, non-exclusive, perpetual, non-transferable, royalty free, irrevocable, licence to exercise any Intellectual Property Rights for: (a) (b) receiving the benefit of the Subcontracted Activities in accordance with this Agreement; and performing the Activities in accordance with the Head Agreement (including the right to sublicense to the Client). [END OPTION 3] 7 Confidentiality 7.1 Obligations of confidence Each party must: (a) any: (i) claim by the Client against UQ under clause [x] of the Head Agreement; (ii) breach of the Head Agreement by UQ; or (iii) termination of the Head Agreement, in connection with a breach by the Subcontractor of this Agreement or any negligent or unlawful act or omission of that Subcontractor; or (b) any claim by the Client against UQ due to any infringement of a third party’s Intellectual Property where such claim relates in whole or in part to any Intellectual Property which the Subcontractor made available in the performance of the Subcontracted Activities, provided that the Subcontractor’s liability under this Agreement is reduced to the extent that any loss or damage is caused by any negligent act or omission of UQ. keep the Confidential Information of the other party RPM Template _ Shortform subcontract (UQ as Contractor engaging subcontractor) 7 8.2 Consequential loss 10 Subject to clauses 8.1 and 8.3, each party is not liable to the other party in connection with this Agreement for any loss or damage however caused (including due to the negligence of that party) that is consequential loss, indirect loss, loss of profits, loss of revenue, loss of reputation, loss of bargain or loss of opportunity. 8.3 Requirements of law GST (a) Words or expressions including the term “Tax Invoice” used in this clause 10 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the “GST Law”) or, if not so defined, then which are defined in the Competition and Consumer Act 2010 (Cth), have the same meaning in this clause 10. (b) The parties acknowledge that all amounts payable under or in connection with this Agreement are expressed on a GST exclusive basis. (c) If any supply made under this Agreement is a taxable supply, the recipient must pay to the supplier, in respect of that taxable supply, an additional amount equal to the GST payable by the supplier in respect of that taxable supply. (d) The recipient must pay the amount payable under clause 10(c) at the same time as payment must be made for the taxable supply, provided the supplier has given the recipient a Tax Invoice for that payment stating the amount of GST paid or payable by the supplier in respect of the supply to which the Tax Invoice relates. (e) Each party warrants to the other party that at the Commencement Date, they are registered for GST and hold an Australian Business Number. (f) If at any time during the term of this Agreement a party ceases to be registered for GST then that party must promptly notify the other party. (g) If, at any time, an adjustment event arises in respect of any supply made by a party under this Agreement, a corresponding adjustment must be made between the parties in respect of any amount paid pursuant to clause 10(c). (h) Payments to give effect to the adjustment must be made between the parties and the supplier must issue a valid adjustment note in relation to the adjustment event. (i) If an amount that would otherwise be payable under this Agreement is calculated by reference to or otherwise relates to a cost, expense or other amount incurred by a party (“Payee”), then that amount will be reduced by the amount of any input tax credit to which the Payee is entitled in respect of that amount. (j) The Payee will be assumed to be entitled to a full input tax credit unless it demonstrates that its entitlement is otherwise prior to the date on which the payment must be made. (k) If a person is a member of a GST group, references to GST for which the person is liable and to input tax credits to which the person is entitled include GST which the representative member of the GST group is liable and input tax credits to which the representative member is entitled. If any applicable legislation prohibits the exclusion of liability by a party in the manner contemplated by this clause 8 with respect to particular loss or damage, then: (a) the exclusion does not apply to that loss or damage; and (b) that party’s liability is only limited or excluded with respect to that loss or damage in the manner permitted under that legislation (if any). [END OPTION] 9 Term and Termination 9.1 Term This Agreement commences on the Commencement Date and continues until the Expiry Date unless UQ notifies the Subcontractor that the Activities have been performed to UQ’s satisfaction earlier than the Expiry Date. 9.2 Termination (a) (b) (c) 9.3 UQ may terminate this Agreement by notice to the other party if: (i) the Subcontractor commits a material breach of this Agreement and does not remedy that breach within thirty days of that breach being notified to the Subcontractor; (ii) an Insolvency Event occurs with respect to the Subcontractor; (iii) the Head Agreement expires or is terminated for any reason; (iv) the Subcontractor notifies UQ that it can no longer carry out any of its obligations under this Agreement or is unwilling to do so; or (v) UQ reasonably determines that sufficient or economic insurance cover is unable to be obtained by UQ or the Subcontractor with respect to the Subcontracted Activities. The Subcontractor acknowledges and agrees that if the Client changes the scope of the Activities as contemplated by the Head Agreement, then UQ may give notice to the Subcontractor notifying the Subcontractor of the change and any respective changes to the scope of the Subcontracted Activities and the Fees in the same manner. Each party expressly waives any rights that party may have had to terminate this Agreement other than in accordance with this clause 9. 11 After termination or expiration (a) Insurance Following termination or expiration of this Agreement, the parties agree that: Each party must, for as long as any obligations remain arising from this Agreement, effect and maintain valid, enforceable and adequate: (i) accrued rights and remedies of a party will not be affected; (i) public liability insurance of $10,000,000 or more per claim; (ii) each party must return the Confidential Information of the other party in that party’s possession or control; and (ii) workers compensation insurance as required by statute; (iii) (iii) clauses 5.1(b), 5.3, 6.2, 6.3, 7, 8 and 11 and any other provisions intended by the parties to survive termination or expiration, will survive termination or expiration of this Agreement and will not be affected by such termination or expiration. general insurance in respect of all property (in which the Subcontractor has an insurable interest) for the full reinstatement value, that is used in connection with the Subcontracted Activities, including all buildings, fixtures and fittings and contents contained thereon or therein, against all loss and damage caused by RPM Template _ Shortform subcontract (UQ as Contractor engaging subcontractor) (a) 8 or resulting from accident, fire, theft, malicious damage or storms and any other insurable risk which property of a similar nature is commonly insured against; and (iv) (b) 12 professional indemnity insurance of $10,000,000 or more per claim. Proof of adequate levels of self-insurance or other protection by a party are acceptable as an alternative to the insurances required under this clause 11(a). General 12.1 Further assurances Each party must do all things necessary or desirable to give effect to the provisions of this Agreement including by signing all documents and performing all acts. 12.2 Entire agreement This Agreement: (a) contains the entire agreement of the parties; and (b) supersedes all prior representations, conduct and agreements, with respect to its subject matter, except to the extent that any express guarantees have been given by a party as contemplated by section 59 of the Competition and Consumer Act 2010 (Cth). 12.3 Costs Each party is responsible for its own costs of entering into and performing this Agreement. 12.4 Jurisdiction The laws of [Insert jurisdiction of Head Agreement] apply to this Agreement and each party irrevocably submits to the non-exclusive jurisdiction of the courts of [Insert jurisdiction of Head Agreement] and courts competent to hear appeals from those courts. 12.5 Severability To the extent that any portion of this Agreement is void or otherwise unenforceable then that portion will be severed and this Agreement will be construed as if the severable portion had never existed. 12.6 No agency This Agreement does not create a relationship of employment, trust, agency or partnership between the parties. 12.7 Waiver A right under this Agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver. 12.8 Discretion Unless otherwise expressly contemplated, where a provision of this Agreement contemplates that a party may exercise its discretion then that party is entitled to exercise that discretion absolutely, with or without conditions and without being required to act reasonably or give reasons. 12.9 Counterparts (a) This Agreement will be validly executed if signed in any number of counterparts and the counterparts taken together will constitute one agreement. (b) Each party may communicate its execution of this Agreement by successfully transmitting an executed copy of this Agreement by facsimile or email to the other party. RPM Template _ Shortform subcontract (UQ as Contractor engaging subcontractor) 9