COLLABORATIVE RESEARCH AGREEMENT
B E T W E EN:
THE UNIVERSITY OF MANITOBA
Winnipeg, Manitoba
R3T 2N2
(the "University")
and
(the “Collaborator")
WHEREAS
area of
WHEREAS
, an academic staff member, of the University, has experience in the
.
, a researcher of the Collaborator, has experience in the area of
.
WHEREAS the University and the Collaborator desire to participate in a collaborative
research project entitled
(the “Research Project”).
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants and agreements herein and subject to the terms and conditions set out
in this Agreement, the Parties agree to undertake the Research Project as follows:
1.
Definitions
Whenever the words and expressions which follow appear in this Agreement, they
shall be interpreted according to the definitions given hereafter unless implicitly or
explicitly expressed otherwise in the text:
1.1
“Arising Intellectual Property” means, individually and collectively, all Intellectual
Property made, conceived or developed during the term of this Agreement and
directly resulting from the Research Project carried out hereunder.
1.2
“Background Intellectual Property” means, individually and collectively, all
Intellectual Property developed, produced or obtained by a Party outside the scope
of the Research Project.
1.3
“Effective Date” means
1.4
“End Date” means
.
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1.5
“Intellectual Property” means any new and useful art, invention, discovery,
innovation, process, product, formulae, software, manufacture or composition of
matter, or any new and useful improvement in any art, invention, discovery,
innovation, process, product, formulae, software, manufacture or composition of
matter, and any industrial and/or intellectual property rights and all such other rights
whether or not statutorily protected or capable of being protected under statute.
1.6
“Joint Owner” means a Party who has been determined under the laws of
inventorship of Canada to have contributed to the creation of Intellectual Property in
such a way that that Party shares in the attribution and ownership rights relating to
that Intellectual Property;
1.7
“Party” means the University and the Collaborator individually and “Parties” means
the University and the Collaborator together.
2
Research Project
2.1
The respective work of the University and the Collaborator under the Research
Project is described in the statement of work attached hereto as Appendix “A” (the
“Statement of Work”).
2.2
The principal investigator for the University will be
. The principal investigator
for the Collaborator will be
. Neither party shall perform work outside of the
scope of the Statement of Work, unless agreed to in writing by the Parties.
2.3
The Parties intend to contribute, each in its area of expertise, to the Research
Project and will act at all times in accordance with the terms and conditions of this
Agreement.
3.
Term
This Agreement shall become effective on the Effective Date and shall continue in
effect until the End Date, unless extended by the mutual agreement of the Parties or
terminated in accordance with section 15 of this Agreement.
4.
Contributions
4.1
The total monetary contribution from the Collaborator for the Research Project is
($
), plus
($
) in in-kind contributions as set out in Appendix
“B” (the “Budget”). The Collaborator agrees to pay and contribute the said amounts
to the University in accordance with the Budget for the Research Project.
4.2
All monetary contributions by the Collaborator shall be made by cheque payable to
the "University of Manitoba" and forwarded to: Senior Grant Accountant, Budgets
and Grants, 404 Administration Building, University of Manitoba, Winnipeg Manitoba
R3T 2N2.
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4.3
The total contribution from the University shall be
($
) which shall
include staff time and other in kind contributions as set out in the Budget.
5.
Confidentiality
5.1
The Parties agree that each of them may receive confidential or proprietary
information from the other in connection with the Research Project. Each Party
agrees, therefore, that such information received from the other, and marked as
confidential, (the “Confidential Information”) will not be disclosed to any third party or
used for its own purposes without the written consent of the disclosing Party, and
that reasonable and prudent practices shall be followed to maintain the Confidential
Information in confidence. This prohibition includes but is not limited to, press
releases, educational and scientific conferences, promotional materials, government
filings, and discussions with lenders, investment bankers, public officials and the
media and shall also be subject to Article 8 regarding Publication.
5.2
The Parties agree, if requested in writing by the disclosing Party to return promptly
at the completion of the Research Project all copies in any media of any
Confidential Information supplied by the other Party, in relation to the Research
Project provided that, in the case of fixed storage media, the Confidential
Information shall be irretrievably erased after a copy has been provided to the other
receiving Party. The obligations of confidentiality shall survive for a period of five (5)
years beyond the expiration or earlier termination of this Agreement.
5.3
The obligations of confidentiality set forth in subsection 5.1 hereof, shall not apply to
any information which:
(a)
is already known to the receiving Party before receipt from the disclosing
Party as evidenced by written records;
(b)
is generally available to the public or becomes publicly known through no
fault of the receiving Party;
(c)
is received by the receiving Party from a third Party who had a legal right to
disclose without restriction; or
(d)
is developed by the receiving Party independently of and without reference to
Confidential Information received from the disclosing Party as evidenced by
written records.
(e)
must necessarily be disclosed by either Party to financial institutions or other
funding sources to obtain financial assistance, provided that such entities
agree to keep the information confidential; and/or
(f)
must necessarily be disclosed by either party to file patent applications with
respect to inventions that are part of the Arising Intellectual Property.
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5.4
Notwithstanding any other provision of this Agreement, disclosure of Confidential
Information shall not be precluded if such disclosure is in response to a valid order
of any governmental agency, court or other quasi-judicial or regulatory body of
competent jurisdiction, provided however, that the responding Party shall, as
promptly and as reasonably possible, give notice to the other Party of the
requirement so that the other Party may contest the requirement to provide such
Confidential Information.
6.
Results of Research Project
6.1
Each Party will keep the other Party informed of research results obtained from its
work in connection with the Research Project. Information shared in accordance
with this section shall be treated as confidential by the Party to which it is disclosed
(even if not identified as confidential by the disclosing Party ), and shall be handled
by that Party in accordance with the terms of paragraph 5 above, unless otherwise
agreed to in writing by the Parties. Subject to the confidentiality obligations in this
section and the publication restrictions in Section 8 herein, following the
collaboration, each Party shall have an unrestricted right to use for its own internal
non-commercial research and education purposes all research results, including
without limitation any Arising Intellectual Property.
7.
Intellectual Property Ownership
7.1
Ownership of Background Intellectual Property
7.1.1 The title to any Background Intellectual Property already owned or controlled by a
Party, or that is developed, produced or obtained by a Party outside of the scope of
the Research Project shall not be affected by this Agreement.
7.1.2 A Party may use Background Intellectual Property already owned or controlled by
another Party, and which is disclosed as part of the Research Project, solely for the
Research Project and the term of the Research Project. The use of the Background
Intellectual Property by a Party shall in no way affect the ownership of that
Background Intellectual Property.
7.2
Ownership of Arising Intellectual Property
7.2.1 Arising Intellectual Property conceived and/or reduced to practice entirely by the
employee, student or agent of one Party shall vest with that Party in accordance
with its applicable policies and collective agreements. Arising Intellectual Property
made jointly by employees, students or agents of both Parties shall be jointly owned
by the Parties, based on each of their contributions.
7.2.2 Joint Owners shall manage commercialization activities in respect of jointly owned
Arising Intellectual Property as per the terms of an inventions management
agreement to be negotiated on commercially reasonable terms between the Joint
Owners acting in good faith.
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7.2.3 Each Party hereby grants to the other Party a non-exclusive fully-paid worldwide,
royalty free license to use the Arising Intellectual Property for their own internal
research and educational non-commercial purposes and shall ensure that the
appropriate and necessary agreements and documents are obtained from their
employees, students and/or agents in order to grant such rights of usage.
7.2.4 The University agrees to grant to the Collaborator an option to negotiate an
exclusive royalty bearing license to make, use or sell any Arising Intellectual
Property owned by the University. The Collaborator shall have three (3) months
from disclosure of any Arising Intellectual Property to notify the University of its
desire to enter into such license which agreement shall be negotiated in good faith
within a period not to exceed six (6) months from the Collaborator’s notification of its
intention to exercise said option or such period of time as the parties may mutually
agree.
OPTION A:
include
exclude
7.2.5 The Collaborator agrees to grant to the University an option to negotiate an
exclusive royalty bearing license to make, use or sell any Arising Intellectual
Property owned by. The University shall have three (3) months from disclosure of
any Arising Intellectual Property to notify the University of its desire to enter into
such license which agreement shall be negotiated in good faith within a period not
to exceed six (6) months from the University notification of its intention to exercise
said option or such period of time as the parties may mutually agree.
OPTION B:
include
exclude
8.
Publication
8.1
Both the University and the Collaborator acknowledge and agree to the importance
of publishing articles in appropriate academic journals or other venues as well as
students having the freedom to defend a thesis without delay.
8.2
If the results of the Research Project will be jointly published however, authorship of
results of the Research Project will be determined in accordance with academic
standards and custom. Proper acknowledgment will be made for the contributions
of each Party to the research results being published. If a proposed publication is
not a joint publication, the Party wishing to make the publication shall provide a copy
of the manuscript or abstract to the other Party at least thirty (30) days prior to
publication to allow the other Party an opportunity to protect its Intellectual Property
that might be disclosed by the manuscript or abstract. In addition, a Party will not
publish Confidential Information received from the other Party (not to include
information and data generated by that Party in the course of the Research Project)
without such other party’s consent, which shall not be unreasonably withheld or
denied. Once the research results of the Research Project have been published,
the confidentiality restrictions of this Agreement shall no longer apply to such
information.
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8.3
The Parties acknowledge and accept that one or more master’s theses or one or
more doctoral theses may be generated within the framework of the Research
Project. Notwithstanding any provision of this Agreement, students involved in the
Research Project shall retain copyright in respect of their master’s theses or
doctoral theses. The Parties agree that no delay on dissemination of theses
(including making it available in the library system or online) may be imposed.
9.
Publicity
9.1
Neither Party will use the name of the other in any publication, promotion or
advertisement with respect to the Research Project or its results, without the prior
written consent of the other except that both Parties may publish the title of the
Research Project, the name of the other Party, the value of the Agreement, and the
name(s) of the Principal Investigator(s) in its internal records and reports regarding
research funding.
10.
Equipment
10.1
All materials, supplies and equipment purchased for this Research Project with
funds provided under this Agreement, shall remain the property of the University
after completion of the Research Project.
11.
Indemnification
11.1
Each Party shall be responsible for all losses, costs, damages and expenses of any
nature whatsoever, that it may suffer for any reasons whatsoever, or arising from or
in any way whatsoever attributable to the present Agreement and/or the Research
Project unless said losses, costs damages, and expenses arise from an act of
negligence or wilful misconduct of the other Party or of its employees, agents and/or
subcontractors. In the event that one Parties’ (the “Indemnifying Party”) negligence
or wilful misconduct results in losses, damages, costs, expenses or actions against,
the other Party (the “Damaged Party”), then the Damaged Party shall be
indemnified and saved harmless by the Indemnifying Party from all such losses,
damages, costs, expense and actions. The Indemnifying Party shall not be liable to
the Damaged Party for any indirect, consequential or special damages.
12.
Insurance
12.1
Each Party shall obtain and maintain comprehensive general liability insurance in
the minimum of five million ($5,000,000) dollars and any other insurance as the
circumstances warrant that a prudent person would deem necessary to cover any
liabilities that may arise under this Agreement. Each Party shall, upon request,
provide the other Party with a Certificate of Insurance evidencing the coverage
required hereunder.
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13.
Representations and Warranties
13.1
Each Party represents and warrants that it is competent to perform the work under
this Agreement and the Research Project and has the necessary qualifications
including the knowledge, skill and ability to perform the work.
13.2
Each Party will conduct the Research Project in a professional manner conforming
to generally accepted practices for scientific research. Given the exploratory nature
of the research and development activities contemplated neither Party makes any
representations nor undertakings as to the quality or nature of the research and
development work undertaken nor that the subject of such work will be suitable or
marketable for any particular purpose or uses, other than that such work will be
performed in good faith and with reasonable efforts of those participating in
accordance with the objects and spirit of this Agreement.
The Parties hereto represent that they have the necessary capacity and authority to
enter into this Agreement.
14.
Compliance with Laws and Regulations
14.1
All work and research done in connection with the Research Project will be done in
compliance with all applicable Federal, Provincial and local laws, regulations and
guidelines of Canada.
15.
Termination
15.1
Each Party shall have the right to terminate its participation in the Research Project
with or without cause by giving ninety (90) days prior written notice thereof to the
other Party (the “Termination Notice”). Nothing in this Agreement shall rescind the
obligations that may have accrued or the rights and privileges of that Party up to the
date specified in the Termination Notice.
15.2
If either Party:
(a)
breaches or defaults under any term or condition of this Agreement and such
breach or default is not remedied within thirty (30) days from the time of
receipt of a written notice from the other Party; or
(b)
becomes bankrupt or insolvent;
this Agreement shall be immediately terminated.
16.
Force Majeure
16.1
Neither Party shall be held responsible to the other Party, for any default or delay in
the execution of its obligations caused by circumstances beyond its control.
Without limiting the generality of the foregoing, natural disasters, strikes, fires, war
and insurrections and actions or government or regulatory bodies, which prevent a
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Party from performing under the Agreement shall be deemed to constitute force
majeure, provided however, that the Party that is excused from performance takes
all measures necessary to prevent, control or limit the effect of the force majeure so
that performance may resume as soon as possible.
17.
Records
17.1
The Parties agree to keep proper and accurate records and documents of the cost
required to support and validate the observations and results of the work in
connection with the Research Project and of all expenses incurred under this
Agreement, including invoices, receipts or other documents for five (5) years
following the expiration or earlier termination of this Agreement. Subject to the
obligations of confidentiality set out in section 5, such records shall be open for
audit and inspection upon reasonable notice.
18.
Laws
18.1
This Agreement shall be governed by and interpreted in accordance with the laws of
the Province of Manitoba and the parties shall attorn to the exclusive jurisdiction of
the courts of the Province of Manitoba.
19.
Assignment
19.1
This Agreement is not assignable by a Party, whether by operation of law or
otherwise, either in whole or in part, without the prior written consent of the other
Party.
20.
Entire Agreement
20.1
This Agreement, which includes the attached Appendices, constitutes the entire
agreement and understanding between the Parties concerning the subject matter
hereof and supersedes all prior communications, negotiations and agreements
concerning the Research Project.
21.
Amendment
21.1
This Agreement may only be modified or amended by written agreement of both
Parties. No amendment or waiver of terms of this Agreement, or in the Research
Project, is effective unless it is in writing, signed by both Parties.
22.
Subcontracting
22.1
Either Party may subcontract portions of the Research Project with the prior written
approval of the other Party.
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23.
Relationship between the Parties
23.1
Nothing contained herein or done hereunder shall be construed as establishing any
agency, employment, partnership or joint venture relationship between the Parties
for any purpose whatsoever.
24.
Severability
24.1
The invalidity or unenforceability of any provision of this Agreement shall not affect
the validity or enforceability of the Agreement itself or any of its provisions.
25.
Survival of Terms and Conditions
25.1
In addition to those provisions surviving by operation of law, sections
"Confidentiality", "Publication", "Publicity", "Indemnification", "Insurance" and
“Intellectual Property/Ownership", as well as this provision, shall survive the
termination of this Agreement for any reason.
26.
Notices
If to the University:
The University of Manitoba
Office of Research Services
540 Machray Hall
The University of Manitoba
Winnipeg, MB R3T 2N2
Tel: (204) 474-9373
Fax: (204) 261-0325
Attention:
, Director, Office of Research Services
With a copy to Principal Investigator:
If to the Collaborator:
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27.
Headings
The headings contained in this Agreement are for convenience and reference only
and shall not define or limit the scope, or affect the interpretation of it provisions.
28.
Counterparts
This Agreement may be signed in counterparts with the same effect as if the Parties
had all signed the same document. All counterparts shall be construed together and
constitute one and the same document.
29.
Time of the Essence
Time shall be of the Essence in this Agreement.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of the
date first written above.
THE UNIVERSITY OF MANITOBA
Per:
Per:
, Director,
Office of Research Services
OR
Vice-President (Research)
READ AND UNDERSTOOD:
Principal Investigator
S:\Legal\Research Services, Office of\Precedents\Collaborative Research Agreement Template Aug 22 14(clean) Protected Tab.doc
Appendix A
Statement of Work/Proposal
Appendix B
Budget