THIS AGREEMENT is made between
MACQUARIE UNIVERSITY, a statutory corporation established pursuant to the Macquarie University
Act 1989, of Talavera Road, North Ryde, NSW 2109, ABN 90 952 801 237 (the University);
AND
[
] of [
], ABN [ ] (the Partner Organisation).
The University and the Partner Organisation are collectively known as the "Parties" for the purpose of
this Agreement.
RECITALS:
A
The Partner Organisation and the University wish to enter into a collaborative research project
entitled: “[ ]” (Project), and more particularly described in Schedule 1 (the Application).
B
[
] of the University's Department of [ ], has applied for, and been awarded, a Macquarie
University Enterprise Partnerships Scheme Pilot Research Grant for 2010-2011 in respect of the
Project (the Grant).
C
It is a condition of a successful Grant application that the University and the Partner Organisation
enter into this written agreement.
OPERATIVE PROVISIONS:
1. Definitions and Interpretation
1.
Throughout this Agreement, capitalised terms which are not defined under this Agreement take
the standard meaning assigned to them, unless the context requires otherwise, and except as
specified in this clause 1.1:
“Application” means the application for a Macquarie University Enterprise Partnerships
Scheme Pilot Research Grant submitted to the University and attached as Schedule 1;
“Agreement” means this agreement or any amendment agreed to in writing by the Parties;
“EPC Documents” means the Enterprise Partnership Pilot Funding Rules and the Enterprise
Partnership Pilot Application form or both, as the context requires;
“Background Intellectual Property” means Intellectual Property in existence at the date of this
Agreement which a Party owns or is licensed to use;
“Confidential Information” means any and all information belonging to a Party, whether
existing prior to the commencement of the Project, or created in the course of the Project, which
is disclosed by one Party to the other and includes all technical, proprietary and operational
information, drawings, techniques, processes, know-how and other commercially valuable
information of any kind. Confidential Information shall be indicated as such at the time of
disclosure;
“Field” means the field of [insert description of field]
“Funding
Rules”
means
the
agreement
accessible
via
the
website
http://www.research.mq.edu.au/about/news_and_events/2010/pilot_research_grant__epc_will_match_dollar-for-dollar_cash_contributions_from_the_enterprise_partner
(as updated from time to time);
link
“Information Privacy Principals” means those defined by section 14 of the Privacy Act 1988
(Cth);
“Intellectual Property” includes all copyright, all rights in relation to inventions (including
patent rights), plant varieties, registered and unregistered trademarks (including service marks),
registered and unregistered designs, Confidential Information, circuit layouts and all other rights
of intellectual property resulting from intellectual activity in the industrial, scientific, literary or
artistic fields recognised in domestic law anywhere in the world;
“Project Plan” means information or work that has been agreed to be undertaken and may
included allocation of specific taks, deliverables and time lines as attached in Schedule 2.
_____________________________________________________________________________________________________
Document1
1
12/03/16
“Products” means any device, substance, method or process, created, produced, or developed
for the purposes of the Project.
“Project Intellectual Property” means Intellectual Property arising from or developed in the
course of the Project by the employees or, in the case of the University, enrolled students, of
either Party.
“Term” means the period between and including the Commencement Date and the Expiry
Date.
1.2 (a) words denoting the singular include the plural and vice versa;
(b) words denoting natural persons include corporations and vice versa;
(c) words denoting any gender include all genders;
(d) headings are for convenience only and do not affect interpretation;
(e) reference to any Party to this Agreement or any other relevant agreement or document
includes that Party’s successors and permitted assigns;
(f) reference to any document or agreement is deemed to include references to such document
or agreement as amended from time to time;
(g) reference to any statute or legislation (whether primary or subordinate) includes is to a statue
or other legislation of the Commonwealth and, if it has been or is amended, replaced, or
supplemented, is a reference to that statute or other legislation as amended, replaced or
supplemented; and,
(h) all schedules to this Agreement form part of this Agreement;
The headings to the clauses of this Agreement are not part of this Agreement and will not affect
its interpretation.
2. Term of the Project
2.1 This Agreement, and the Project, will commence on (Commencement Date):
2.2 This Agreement, and the Project, will expire on the earlier of the following (Expiry Date):
(a) the date 12 months from the Commencement Date of this Agreement unless an agreement to
the contrary has been made; or
(b) a successful project that leads to further funding or funding from other sources, then the
commencement date of a new Partner Organisation Agreement.
3. Conduct of the Project
3.1 The Parties shall carry out the Project diligently and competently in accordance with the
Application in Schedule 1 and the Project Plan in Schedule 2. If any discrepancy exists between
these documents then the Project Plan shall take precedence.
4. Project Contributions
4.1 The Partner Organisation and the University will support the Project as follows:
(a) cash contributions to the Project as follows;
i.
University:
[INSERT AMOUNT]
ii.
Partner Organisation:
[INSERT AMOUNT}
(b) in-kind contributions to the Project as follows;
i.
University:
[INSERT AMOUNT OR SERVICES]
ii.
Partner Organisation:
[INSERT AMOUNT OR SERVICES]
_____________________________________________________________________________________________________
Document1
2
12/03/16
4.2
The contribution under clause 4.1(a) ii will be paid to the University in full, upon production of
an appropriate invoice, within 28 business days of the Commencement Date.
5. Publication
5.1
Subject to clause 5.2, any publications of the results of the Project or the Project Intellectual
Property by a Party must only be made with the written consent of any other Party, which
cannot be unreasonably withheld. The intention of this clause is to protect any commercially
valuable Project Intellectual Property.
6. Confidentiality and Protection of Personal Information
6.1
The Parties undertake:
(a) to treat as confidential and keep secret all Confidential Information which has been or may be
disclosed or which is created or discovered in the course of the Project and to use the
Confidential Information only for the purposes of this Agreement.
(b) not to use the other Party’s Confidential Information except as required for the performance of
this Agreement or other than as permitted under the Intellectual Property arrangements or
agreements entered into or permitted under clause 7;
(c) where there is involvement in the Project by a Student, the University or the Partner
Organisation (as applicable) shall ensure that this Student is, where necessary, aware of the
requirements of this Clause 6;
(d) to use their best efforts to not disclose any Confidential Information to parties outside this
agreement, and where such disclosure is required in accordance with the reporting
requirements of the Funding Agreement, the Parties must use their best efforts to procure that
such disclosure is made on a confidential basis.
6.2
The obligation of confidentiality does not extend to information which:
(a) was already known in the public domain or becomes so at a future date without the fault of the
recipient or parties to whom the information was disclosed, directly or indirectly, by the
recipient,
(b) was a matter of written record in the files of the recipient prior to disclosure to the recipient,
(c) was received by the recipient from a third person under circumstances permitting its
disclosure by the recipient,
(d) was independently developed by the recipient,
(e) becomes known to the recipient from a source other than the disclosing party without breach
of a similar agreement by the outside source, or
(f) the University is required to provide to the Commonwealth of Australia or its agencies in
accordance with the reporting requirements of the Funding Agreement.
6.3
Upon termination or expiry of this Agreement a Party, its employees or agents, in possession
of any Confidential Information (including all documents and materials and copies thereof)
owned by the other Party shall return the Confidential Information promptly to its owner at the
request of the owner.
6.4
Each Party agrees, with respect to all activities relating to or in connection with performance of
the Project, or in connection with this Agreement:
(a) to comply with the provisions of Information Privacy Principles when doing any act or
engaging in any practice in relation to Personal Information for the purposes of this
Agreement, as if they were a record-keeper as defined in the Privacy Act 1988 (Cth) (the Act);
(b) to only use Personal Information received, created or held by them for the purposes of this
Agreement or for the purposes of fulfilling its obligations under this Agreement;
(c) not to disclose Personal Information received, created or held by them for the purposes of this
Agreement without the prior written approval of the other Party;
_____________________________________________________________________________________________________
Document1
3
12/03/16
(d) not to use or disclose Personal Information received, created or held by them for the purposes
of this Agreement or to engage in a practice that would breach section 16 F of the Privacy Act
[Direct Marketing], unless the use or disclosure is necessary to meet (directly or indirectly) an
obligation under the Agreement;
(e) not to transfer Personal Information received, created or held by them for the purposes of this
Agreement outside Australia, or to allow parties outside Australia to have access to it, without
the prior approval of the other Party;
(f) to co-operate with reasonable demands or enquiries made by the Federal Privacy
Commissioner or the other Party in relation to the management of Personal Information by a
Party in connection with this Agreement;
(g) to ensure that any person whom they allow access to Personal Information, which is received,
created or held by them for the purposes of this Agreement, is made aware of, and undertakes
in writing, to observe the Information Privacy Principles stated in the Act;
(h) immediately notify the other Party when they become aware of a breach of any obligation
concerning security, use and disclosure of Person Information;
(i) immediately to notify the other Party of, and co-operate with the other Party in the resolution
of, any complaint alleging an interference with privacy; and
(j) to indemnify the other Party and the Commonwealth of Australia and all of its agencies in
respect of loss, liability or expense suffered or incurred or assumed by the other Party or the
Commonwealth of Australia and all of its agencies arising out of, or in connection with:
(i)
a breach of the obligations by the breaching Party under this clause 6.4; or
(ii)
the misuse of Personal Information held in connection with this Agreement by
the breaching Party; or
(iii) the disclosure of Personal Information held in connection with this Agreement
by the breaching Party in breach of an obligation of confidence whether
arising under the Privacy Act 1988 or otherwise.
7. Intellectual Property and Copyright
7.1
The Parties will inform each other in writing of:
(a) any Project Intellectual Property; and
(b) any commercial information not included in sub-clause a) and not in the public domain arising
in the course of carrying out the Project and necessary for the carrying out of the Project,
EXCEPT where such information is the Confidential Information of a third party.
7.2
Any Background Intellectual Property shall remain the property of, as between the Parties to
this Agreement, the contributing Party. Where use of Background Intellectual Property is
necessary for the conduct of the Project, each Party grants to the other a non-exclusive, royaltyfree, non-transferable licence to use its Background Intellectual Property for the term of the
agreement solely for the conduct of the Project.
7.3
Each Party warrants that to its actual knowledge at the time of signature to this Agreement, the
use of it’s Background Intellectual Property will not infringe the Intellectual Property rights of any
third party.
7.4
All right, title and interest in and to all Project Intellectual Property and any Products will be
owned by the University and, to the extent necessary, the Partner Organisation assigns any
right, title or interest it may have now or in the future in the Project Intellectual Property to the
University and transfers any right, title or interest it may have in the Products to the University.
The Partner Organisation hereby agrees to do all things necessary to effect such an
assignment.
7.5
The University grants to the Partner Organisation(s), for the duration of the Term, a nontransferable, non-exclusive, worldwide, royalty-free licence to use the Project Intellectual
Property that is within the Field for internal, non-commercial research and development
purposes.
_____________________________________________________________________________________________________
Document1
4
12/03/16
7.6
The University grants to the Partner Organisation an exclusive, worldwide option (Option) to
obtain an exclusive licence for commercial exploitation of the Project Intellectual Property in the
Field (Commercial Licence).
7.7
The Option:(a) shall subsist with respect to the Project Intellectual Property for the Option Period;
(b) may be exercised within this period by the Partner Organisation delivering written notice to the
University; and
(c) may only be exercised if the Partner Organisation can provide evidence reasonably
satisfactory to the University to demonstrate the following as at the time of exercising the
Option:
(i) company solvency as evidenced by audited company financial reports; and
(ii) that the Field is still its core business.
7.8
Subject to clauses 7.9, 7.10 and 7.11,
(a)
within three (3) months of exercising the Option, the Partner Organisation and the
University shall negotiate in good faith the terms and conditions of the Commercial
Licence, including the following:
(i) the payment and the mechanism for calculation of licence fees and royalties payable
to the University in respect of revenue received by the Partner Organisation;
(ii) the reservation to the University and the Partner Organisation of a perpetual right to
use the Project Intellectual Property and any resulting Products for the purpose of
internal, non-commercial research and development and teaching purposes.
8. Termination
8.1
8.2
Either Party may terminate this Agreement by giving written notice to the other Party on the
following events:
a)
immediately on the bankruptcy liquidation or insolvency or change in ownership of the
other Party which could reasonably be expected to affect the capacity of that Party to
perform its obligations under this Agreement;
b)
failure by the other Party to perform its obligations under this Agreement within 30 days of
receiving written notice from the other Party specifying the default and requiring that
default be remedied;
Upon termination of this Agreement for any reason:
a) the Parties will, at the written request of any other Party, return all property in their
possession belonging to any other Party, including Confidential Information;
b) the Partner Organisation will pay any cash contributions as stipulated under clause 4.1(a)ii
owing at termination within 14 days of termination;
8.3
Termination of this Agreement for any reason shall be without prejudice to the continuing
enforceability of any rights or obligations of the Parties accrued at the time of termination.
8.4
Clauses 6, 7, 8, 9 and 10 survive the termination of this Agreement.
9. Warranty and Indemnity
9.1
The Partner Organisation hereby warrants, represents and covenants to and with the
University that its relationship with the University, and all persons named as the Chief
Investigator in the Project, and also the EPC Funding Proposal, is in accordance with the EPC
Funding Documents.
9.2
Subject to clause 9.5, each Party (‘the Indemnitor’) indemnifies the other Party, its respective
personnel, including those officers, employees and agents of each (‘the Indemnified’) against
_____________________________________________________________________________________________________
Document1
5
12/03/16
all losses, damages, costs, and expenses (including reasonable legal costs but excluding
consequential losses) arising out of:
(a)
any wilful, unlawful or negligent act or omission of the Indemnitor, or any of its
personnel, officers, employees and agents in connection with this Agreement during
the Term; or
(b)
the use of the Indemnitor’s Background Intellectual Property by those Indemnified; or
(c)
any claim, suit, demand, action or proceeding by any person in respect of any
infringement (or alleged infringement) of the Indemnitor’s Background Intellectual
Property, or the Project Intellectual Property, or the Products, by those Indemnified.
9.3
A Party's liability to indemnify another Party or third party under clause 11.2 will be reduced
proportionately to the extent that any negligent act or omission of the indemnified Party or third
party contributed to the relevant losses, damages, costs, and expenses.
9.4
The Partner Organisation indemnifies the University against all losses, damages, costs and
expenses (on a solicitor/own client basis) incurred or suffered as a result of the University 's
default or breach of the terms of this Agreement the University’s reliance on the Partner
Organisation’s covenant under clause 11.1
9.5
The Partner Organisation’s liability to indemnify the University or third party under clause 11.4
will be reduced proportionately to the extent that any negligent act or omission of the
University or third party contributed to the relevant losses, damages, costs and expenses.
9.6
To the extent permitted by law, the total liability of the University to the Partner Organisation
for loss or damage of any kind howsoever caused in relation to this Agreement or the Project
is limited to the amount equivalent to the total of the Partner Organisation’s cash contribution
as stipulated in clause 4 above.
9A Goods and Services Tax
9A.1
For the purposes of this Clause the following expressions shall have the following meanings:
(a)
“GST” has the meaning as given in section 195-1 of the A New Tax System (Good and
Services Tax) Act 1999
(b)
“GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (as
amended) and all related ancillary legislation which provides for a broad based
consumption tax on the supply of Goods and Services which becomes operative in
respect of the provisions of this Agreement.
(c)
Words or expressions in this Clause 9A that are defined in the GST Law have the same
meanings in this clause as therein defined.
9A.2
If there is a taxable supply under this Agreement and if the recipient of the consideration is
liable to GST in relation to that supply, the Parties agree that the amount payable for that
supply under this Agreement by any Party shall be adjusted by the amount of the GST.
9A.3
No Party may claim or retain from any other party any amount under this Agreement for which
the first Party can obtain an input tax credit.
10. Insurance
10.1
Each Party must effect and maintain adequate insurance to cover it against any liability arising
as a result of its participation in the Project, and all insurances required under Workers’
Compensation legislation and for taking all other action required as an employer.
11. Assets
11.1
Subject to any terms of the Project to the contrary, each Party agrees that any item of tangible
or real property (excluding Intellectual Property rights) that is purchased for the Project will be
owned by the University.
_____________________________________________________________________________________________________
Document1
6
12/03/16
12. Formal Provisions
12.1
Each Party agrees that it is not, and agrees not to claim or imply that it is, a partner or agent of
the other Party or otherwise able to bind or represent the other Party.
12.2
A waiver by either Party of any breach or of a failure to comply with any provision of this
Agreement by the other Party is of no effect unless it is in writing.
12.3
This Agreement shall be governed by and construed in accordance with the laws in force in the
State of New South Wales and the Commonwealth of Australia and the Parties by their
execution submit to the jurisdiction of those Courts.
12.4
In the case of a dispute arising under this Agreement (the Dispute) a party to the contract must
not commence any court or arbitration proceedings unless the Parties to the Dispute have
complied with the following paragraphs of this clause except where a Party seeks urgent
interlocutory relief.
(a)
a Party to this contract claiming that a Dispute has arisen out of or in relation to this
contract must give written notice (the Notice) to the other party to this contract
specifying the nature of the Dispute;
(b)
if the Parties do not agree within seven (7) days of receipt of the Notice (or such
further period as agreed in writing by them) as to:
(i)
the dispute resolution technique (eg expert determination) and procedures to be
adopted;
(ii)
the timetable for all steps in those procedures; and
(iii) the selection and compensation of the independent person required for such
technique,
the Parties must mediate the Dispute in accordance with the Mediation Rules of the Law
Society of New South Wales, and, the President of the Law Society of New South Wales or the
President’s nominee will select the mediator and determine the mediator’s remuneration.
12.5
If any clause or any part of this Agreement or the application of the same to any party shall for
any reason be adjudged by a court or other legal authority of competent jurisdiction to be
invalid, such judgment shall not affect the remainder of this Agreement, the terms of which shall
remain in full force and effect.
12.6
The Parties are severally liable for their respective obligations under this Agreement.
12.7
This Agreement may be executed in any number of counterparts each of which when so
executed shall be deemed to be original and all of which shall constitute one and the same
agreement.
13. Notices
13.1
Any notice or other communication under this Agreement shall be given in writing and delivered
by hand, sent by pre-paid post, or facsimile transmission.
13.2
The address for any such notices is as follows:
the University:
the Partner Organisation:
Deputy Vice-Chancellor (Research)
c/- the Contracts Officers
Research Office L3 C5C
Research Hub East
Macquarie University NSW 2109
[Name]
[title]
[Address]
[Address 2]
[city
state p/c]
Telephone: (02) 9850 8612
Facsimile: (02) 9850 4465
Telephone:
Facsimile:
(
(
]
_____________________________________________________________________________________________________
Document1
7
12/03/16
_____________________________________________________________________________________________________
Document1
8
12/03/16
EXECUTED on the days and dates written below.
SIGNED for and on behalf of
SIGNED for and on behalf of
University
Partner Organisation
Signature:
Signature:
Name:
Name:
Capacity:
Capacity:
Date:
Date:
_____________________________________________________________________________________________________
Document1
9
12/03/16
Schedule 1
Enterprise Partnerships Scheme Application (The Project)
_____________________________________________________________________________________________________
Document1
10
12/03/16
Schedule 2
Enterprise Partnerships Scheme Project Plan (The Project Plan)
_____________________________________________________________________________________________________
Document1
11
12/03/16