SHORT-FORM CRA
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. The Proposal will be annexed as Schedule 2.
This is a shortform CRA, with IP created during the IP
vesting in UQ. If you wish to have other IP options, please
revert to longform CRA.
This is a collaborative research agreement, and not a
subcontract so the Head Agreement is not flowed down,
but the agreement may terminate if the Head Agreement
terminates.
Please revert to Research Legal if edits or amendments
are required.
RPM Template_ Shortform Collaborative Research Agreement
1
Collaborative research agreement
Parties
Collaborator
names, indications of origin, designs,
plant varieties, semiconductors, circuit
layouts, confidential information or
knowhow, any right of registration of such
rights and all other intellectual property as
defined in article 2 of the Convention
Establishing the World Intellectual
Property Organisation 1967.
[Insert 1st party name] [Insert 1st party
ACN/ABN/ARBN]
of [Insert 1st party address]
UQ
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
Progress Report
means a report setting out a description of
the progress of the Project and, if
applicable, a synopsis of what further
work must be done to complete the
Project.
Project
means the project described in the
Proposal and includes any administrative
activities in connection with the Project.
Project IP
means all Intellectual Property created in
the course of or arising from the
performance of the Project other than
Student IP.
Project Period
means the period specified in the
Proposal.
Proposal
means the proposal set out in Schedule 1.
Specified
Personnel
means the personnel specifically named
in the Proposal.
Student IP
means copyright in any work or subject
matter other than a work submitted for
examination for the award of a
postgraduate research degree by a
student enrolled at UQ or the
Collaborator.
Term
means the term specified in clause 10.1.
Background
A
The parties have collaborated in the creation and
development of the Proposal for the Project.
B
The parties have agreed to undertake the Project in
accordance with the terms and conditions of this Agreement.
Operative terms
1
Definitions and interpretation
1.1
Definitions
In this agreement:
Background IP
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 Project; or
(c)
assigned or licensed to that party
during the Term independently of
the Project,
and made available by that party for the
purpose of performing the Project.
Chief
Investigator
means the chief investigator specified in
the Proposal (if any).
Commencement
Date
means the date of this agreement.
Confidential
Information
with respect to a party means any
information disclosed by the other party in
relation to the Project.
Contributions
means the cash and in-kind contributions
specified in the Proposal.
Final Report
means a report setting out a description of
the outcomes of the Project (if any).
Head Agreement means the agreement between UQ and
[Insert third party name and ACN] titled
“[Insert title of agreement]” dated on or
about [Insert date].
Intellectual
Property Rights
means all industrial and intellectual
property rights anywhere in the world,
whether registered or unregistered,
including patent rights, trade mark rights,
copyright, moral rights, plant breeders’
rights and rights in relation to inventions,
trade names, business names, company
RPM Template_ Shortform Collaborative Research Agreement
1.2
Interpretation
In this agreement:
(a)
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;
(b)
references to a party mean UQ or the Collaborator and
references to the parties mean both UQ and the
Collaborator; and
(c)
words such as “includes” and “including” do not impose
any limitation on the construction of general language
that is followed by specific examples.
2
Project
2.1
Participation
Each party must actively participate in the Project including by
meeting that party’s responsibilities outlined in the Proposal.
2.2
Reasonable steps
Each party must exercise due care and skill in carrying out the
Project and take all reasonable steps to minimise delay in
completing the Project.
2.3
Ethical approvals
Each party must ensure that it obtains, maintains and
complies with all ethical clearances and regulatory approvals
necessary or desirable to perform the Project during the Term.
2
3
Contributions
3.1
Provision of Contributions
but subject to any encumbrances notified to the other
party in writing at the time that Background IP is made
available.
The Collaborator must:
(a)
(b)
3.2
pay that party’s cash Contributions to UQ on the later
of:
(b)
5.2
Warranty
(i)
the date specified in the Proposal; and
Each party represents and warrants to the other party that:
(ii)
the date that is 30 days after receipt of an
invoice; and
(a)
to the best of that party’s knowledge as at the date of
this Agreement (without having made any enquiries),
the grant of the licence contemplated by clause 5.1 and
use of the Background IP as contemplated by clause
5.1 will not infringe the Intellectual Property of any third
party;
(b)
that party is not aware of any allegation that the grant of
the licence contemplated by clause 5.1 or use of the
Background IP as contemplated by clause 5.1 infringes
the Intellectual Property of any third party; and
(c)
except with the prior approval of the other party (which
must not be unreasonably withheld or delayed), that
party will not assign, encumber or otherwise deal with
the Background IP of that party in a manner that would
prohibit or reduce use of that Background IP in the
performance of the Project.
provide that party’s in-kind Contributions to the Project
at the times and in the manner specified in the
Proposal.
Accountability
UQ must ensure that the Contributions are used to assist UQ
to carry out the Project.
3.3
Acknowledgement
The Collaborator acknowledges and agrees that:
3.4
(a)
the Project involves research;
(b)
the nature of research means that the Project may not
result in any outcome, product or commercial
Intellectual Property Rights; and
(c)
UQ is not obliged to create any outcome, product or
commercial Intellectual Property Rights as a result of
the Project.
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.
5.4
Background IP protection and infringement
Each party must:
Replacement of Specified Personnel
(a)
Each party agrees that, if any of any Specified Personnel of
that party becomes unavailable to work on the Project as
specified in the Proposal, then that party must:
take all reasonably necessary steps to protect, maintain
and enforce Background IP made available for the
purpose of performing the Project;
(b)
give the other party prompt notice of any infringement
of Background IP that comes to that party’s attention;
and
(c)
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.
(a)
immediately notify UQ of that unavailability; and
(b)
replace that Specified Personnel with personnel which
have:
(c)
4
5.3
Availability of Specified Personnel
Each party will make the Specified Personnel available to
perform the Project at the times and with the resources
specified in the Proposal.
3.5
For clarity, the licences contemplated by clause 5.1 do
not include the right to sublicense to third parties.
(i)
the time commitment, qualifications and
competency to carry out the Project; and
(ii)
similar expertise and ability to those of the
Specified Personnel they are to replace; and
6
Project IP
6.1
Ownership
notify UQ of the name and qualifications of the
replacement personnel within 14 days of the
replacement.
(a)
The parties agree that the Project IP will be owned by
UQ.
(b)
To the extent necessary to give effect to clause 6.1(a)
the Collaborator assigns all right, title and interest in the
Project IP to UQ from the date such Project IP is
created.
(c)
Without limiting clause 13(a), the Collaborator must
sign all documents and perform all acts as required by
UQ to give effect to the assignment contemplated by
clause 6.1(a).
Reporting
(a)
(b)
UQ must endeavour to provide a Progress Report to
the Collaborator at the times specified in the Proposal
(if any).
UQ must endeavour to provide a Final Report to the
Collaborator within [Insert timeframe] of the end of the
Term.
5
Background IP
5.1
Licence
(a)
6.2
Warranty
The Collaborator represents and warrants to UQ that:
(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 Project 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 Project IP created by that party infringes
the Intellectual Property of any third party.
Each party grants to the other party a world-wide,
perpetual, non-exclusive, non-transferable, royalty free
licence to use that party’s Background IP:
(i)
during the Term for the purpose of conducting
the Project in accordance with this Agreement;
and
(ii)
if use of the Project IP is reliant upon the
Background IP, to the extent required for each
party to use the Project IP for non-commercial
research and education activities during and after
the Term,
RPM Template_ Shortform Collaborative Research Agreement
6.3
Notice of allegations of infringement
The Collaborator must give UQ prompt notice of any
allegation that the assignment contemplated by clause 6.1(b)
or use of Project IP infringes the Intellectual Property of any
3
third party.
6.4
and otherwise disclose the results of the Project after
obtaining UQ’s consent (such consent not to be
unreasonably withheld or delayed).
Licence
(a)
UQ hereby grants to the Collaborator a non-exclusive,
non-transferable, royalty free licence in Australia to use:
(i)
the Project IP for the performance of the Project
under this Agreement during the Term; and
(ii)
the Project IP (as the Project IP existed at the
date on which this Agreement expires or is
terminated for any reason) for non-commercial
research and education activities during and after
the Term.
(b)
The licence contemplated by clause 6.4(a)(ii) is not
granted to a party if this Agreement is terminated as a
result of a breach of this Agreement by that party.
(c)
For clarity the licence contemplated by clause 6.4(a)
does not include the right to sublicense to any third
parties.
7
Confidentiality
7.1
Obligation of confidence
(d)
[Consider whether this is an appropriate liability position given the
commercial circumstances.]
9
Liability
9.1
Consequential loss
Subject to clause 9.3, 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.
9.2
7.2
keep the Confidential Information of the other party
confidential;
(b)
not use or copy the Confidential Information of the other
party for any purpose other than for the purpose of
performing the Project;
(c)
not disclose the Confidential Information of the other
party to any third party; and
(d)
not use the Confidential Information of the other party to
the disadvantage of the other party.
9.3
Requirements of law
If any applicable legislation prohibits the exclusion of liability
by a party in the manner contemplated by this clause 9 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).
Exceptions
The obligations of confidence contemplated by clause 7.1 do
not apply to Confidential Information of a party:
(a)
(b)
(c)
7.3
Speculative nature of research
Subject to clause 9.3, each party acknowledges and agrees
that due to the speculative nature of the Project as research,
the outcome of the Project is uncertain and UQ will not be
liable for any loss or damage however caused (including due
to the negligence of UQ) suffered or incurred by the
Collaborator in connection with use of any results of the
Project or the Project IP.
Each party must:
(a)
that the other party can show was already known to, in
the rightful possession of or independently developed
by the other party in good faith and free of any
obligation of confidence;
that the other party can show is in the public domain
otherwise than by a breach of this agreement or other
obligation of confidence; or
that is required to be disclosed under applicable law,
but only if the other party has given that party all
available notice to enable that party to attempt to
remove that requirement and only discloses the
minimum information required.
Injunctive relief
Each party must not use any trade mark or logo of the
other party without the other party’s prior consent to the
specific use.
10
Term and Termination
10.1 Term
This agreement commences on the Commencement Date
and continues until the end of the Project Period, unless
terminated earlier in accordance with this clause 10.
10.2 Termination for breach
Either party may terminate this agreement immediately by
notice to the other party if the other party:
(a)
commits a material breach of this agreement; and
(b)
fails to remedy that breach within 30 days of notice
requiring the other party to remedy that breach.
10.3 Termination for insolvency
Each party acknowledges and agrees that:
(a)
(b)
8
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
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.
Publication
(a)
The Collaborator acknowledges that UQ may publish
and otherwise disclose the results of the Project in its
discretion.
(b)
UQ must acknowledge the contribution of the
Collaborator in any publications directly relating to the
results of the Project.
(c)
UQ acknowledges that the Collaborator may publish
RPM Template_ Shortform Collaborative Research Agreement
Either party may terminate this agreement immediately by
notice to the other party if the other party:
(a)
commits an act of insolvency;
(b)
has a controller, receiver, receiver and manager or
administrator appointed;
(c)
goes into liquidation (other than for the purpose of
reconstruction); or
(d)
is unable to pay its debts when due.
10.4 Termination of Head Agreement
UQ may terminate this Agreement by notice to the
Collaborator if the Head Agreement expires or is terminated
for any reason.
10.5 Termination for inability to complete the Project
UQ may terminate this agreement immediately by notice to
the Collaborator if UQ is of the view the Project is unlikely to
be able to be completed (including if such inability is caused
by the resignation or dismissal of the Chief Investigator).
4
10.6 Waiver
arising from this Agreement, effect and maintain valid,
enforceable and adequate:
Each party expressly waives any rights it may have had to
terminate this agreement other than in accordance with this
clause 10.
10.7 Post-termination or expiration
Following termination or expiration of this agreement, the
parties agree that:
11
(a)
accrued rights and remedies of a party will not be
affected; and
(b)
clauses 4(b),5, 6, 7, 8, 9, 12 and 13(a), 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.
GST
(a)
(b)
13
public liability insurance of $10,000,000 or more
per claim;
(ii)
workers compensation insurance as required by
statute;
(iii)
general insurance in respect of all property (in
which the Collaborator has an insurable interest)
for the full reinstatement value, that is used in
connection with the Project, including all
buildings, fixtures and fittings and contents
contained thereon or therein, against all loss and
damage caused by 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)
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 clause 12(a).
General
(b)
The parties acknowledge that all amounts payable
under or in connection with this Agreement are
expressed on a GST exclusive basis.
(a)
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.
(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.
(b)
UQ may subcontract the performance of all or any part
of UQ’s obligations under this agreement
(c)
Any notice, consent, approval, acknowledgement,
verification or report contemplated by this agreement
must be given in writing.
(d)
If an event beyond the reasonable control of UQ occurs
that adversely affects UQ’s ability to perform any
obligations under this agreement, then UQ will not be
liable for, or in breach of this agreement as a result of,
any failure by UQ to perform those obligations as a
direct or indirect result of that Force Majeure Event.
(e)
This agreement may be altered only in writing signed by
the duly authorised representative of each party.
(f)
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.
(g)
This agreement contains the entire agreement of the
parties and 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).
(h)
Each party is responsible for its own costs of entering
into and performing this agreement.
(i)
The laws of [Insert jurisdiction of Head Agreement (if
any)] apply to this agreement and each party
irrevocably submits to the non-exclusive jurisdiction of
the courts of [Insert jurisdiction of Head Agreement (if
any)] and courts competent to hear appeals from those
courts.
(j)
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.
(k)
This agreement will be validly executed if signed in any
number of counterparts and the counterparts taken
together will constitute one agreement.
(l)
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.
(d)
The recipient must pay the amount payable under
clause 11(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 11(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)
(k)
12
Words or expressions including the term “Tax Invoice”
used in this clause 11 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 11.
(i)
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.
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.
Insurance
(a)
Each party must, for as long as any obligations remain
RPM Template_ Shortform Collaborative Research Agreement
5
Execution
Signed as an agreement
SIGNED for and on behalf of
[Insert 1st party name]
by its duly authorised officer:
in the presence of:
..............................................
..............................................
Authorised officer
Witness (Print Name)
..............................................
..............................................
(Print Name)
Date:
Date:
SIGNED for and on behalf of
THE UNIVERSITY OF
QUEENSLAND
by its duly authorised officer:
in the presence of:
..............................................
..............................................
Director, Research Partnerships
Witness (Print Name)
..............................................
Date:
RPM Template_ Shortform Collaborative Research Agreement
6
Schedule 1
Proposal
[Insert proposal with a full description of project including the project period, contributions required and times at which cash and inkind contributions will be provided]
RPM Template_ Shortform Collaborative Research Agreement
7