Collaboration Agreement TKI T&U (<insert reference number TKI>), with the title “<insert title TKI Project>”.
COLLABORATION AGREEMENT
THE UNDERSIGNED:
1. [Industrial Project Partner], having its office at [adres], [country] and represented in this matter by its [position], [name];
2. [Industrial Project Partner], having its office at [adres], [country] and represented in this matter by its [position], [name];
3. [Academic Project Partner], having its office at [adres], [country] and represented in this matter by its [position], [name];
All parties hereinafter together to be referred to as "Parties" and individually as "Party"; Parties 1 and 2 hereinafter also to be referred to as "Industrial Project Partner(s)" and Party 3 also as "Academic Project Partner".
WHEREAS:
- In February 2011, the Dutch government deployed a new innovation policy, which aims to strengthen the international competitiveness of nine leading industrial sectors (the Topsectors) through innovation;
- This new policy is implemented through the installation of at least one Topconsortium voor Kennis en Innovatie (TKI) per Topsector, such Topconsortium voor Kennis en Innovatie having a role in determining the research agenda of the relevant Topsector. Ultimately, the Minister of Economic Affairs (EZ) is responsible for granting public funding through TKI;
- Parties have expressed their willingness to participate in the TKI project "[Title of the Project]", as described in the Project Proposal, attached as Annex 1 ("Project") and to this end have been granted funding by EZ. The framework for state aid for research and development and innovation ("R&D&I") is applicable to this funding.
- the Parties now wish to lay down their arrangements with regard to the Project in this Collaboration Agreement;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
Article 1: Definitions
"Affiliated Entity" means a legal entity that controls a Party or that is under the control of a Party, or under the same control as the Party, control taking any of the following forms:
(a) the direct, or indirect through (but not together with) other entities, holding of more than 50% of the voting rights of the shareholders or associates of that entity;
(b) the power to determine the policy of the legal entity concerned in a decisive way.
"Background" means information, data or material which is either held by a Party prior to its accession to this Collaboration Agreement or that has been developed or obtained by a Party thereafter independently from the Project, as well as any intellectual property rights pertaining to such information, data or material, which is made available to the Parties solely for the purpose of the Project and under the conditions specified in this Collaboration Agreement;
"Coordinator" means the Party that is authorised by the other Parties to act as the secretary or "penvoerder" to the Parties, having the tasks assigned to it under Article 4.1;
"Collaboration Agreement" means this agreement as well as all Annexes and addenda thereto;
"EZ" means the Dutch Ministry of Economic Affairs;
"Foreground" means the results that are generated under the Project, including information, know-how and materials, regardless of whether or not they can be protected;
"IP Right(s)" patent rights, including the applications thereof;
"Project" means all activities related to the project entitled: "[Title of the Project]", which shall be carried out on the basis of the Project Plan;
"Project Budget" means the allocation of all the resources, in cash and/or in kind, contributed by EZ, Industrial Parties and the TKI for the activities with regard to the Project (including managing costs of the Coordinator) as specified in the Project Plan;
"Project Committee" means the decision making body as described in Article 4.5;
"Project Plan" means the research work plan and related budget, which is attached to this Collaboration Agreement as Annex 1;
Article 2: Purpose
The purpose of this Collaboration Agreement is to specify the rights and obligations of the Parties with respect to the Project.
Article 3: Responsibilities of Parties
3.1 Each Party shall contribute to the efficient implementation of the Project Plan and shall cooperate, perform and fulfil, promptly and on time, all of its obligations under this Collaboration Agreement as may be reasonably required from it and in a manner of good faith as prescribed by Dutch law.
3.2 Each Party undertakes to notify promptly the other Parties of any significant information, fact, problem or delay likely to affect the Project.
3.3 Each Party shall provide promptly all information reasonably required by the Project Committee or Coordinator to carry out its tasks.
3.4 Each Party shall support the achievement of the goals of the Project and shall make available to all Parties any Background necessary therefore, as described in Annex 2. The Parties are nevertheless entitled to also contribute Background not listed in Annex 2, as far as necessary for the execution of the Project. This additional Background shall be added to Annex 2. However, no Party shall have an obligation to disclose such additional Background.
3.5 A Party that involves third parties (including, but not limited to, Affiliated Entities) for the execution of the Project shall at all times remain responsible for the execution of its relevant part of the Project and for such third party’s compliance with the provisions of this Collaboration Agreement. It has to ensure that the involvement of third parties does not affect the rights and obligations of the other Parties under this Collaboration Agreement. In addition, a Party is only allowed to involve third parties other than its Affiliated Entities in the execution of its work under the Project upon prior approval thereof by the other Parties.
3.6 In connection with the reporting requirements of the TKI and EZ, Parties acknowledge that the Academic Project Partner shall provide both the TKI and EZ with financial reports as well as scientific reports (which may include an abstract of the Project Plan) of the Project. Each Party shall provide promptly all information reasonably required by the Academic Project Partner to carry out this task.
Article 4: Governance structure
4.1 Parties appoint [name of the secretary or 'penvoerder'] as Coordinator. The Coordinator shall, and the other Parties hereby authorize the Coordinator to carry out the tasks set forth under this Collaboration Agreement which are specifically designated to the Coordinator.
Upon request of the Coördinator, the Academic Project Partner may take over certain Coordinator tasks because of its expertise in certain areas. The Coordinator shall remain responsible for Coordinator tasks carried out by the Academic Project Partner.
4.2 In particular, the Coordinator shall be responsible for:
- Preparing the meetings, proposing decisions and preparing the agenda of the Project Committee, chairing the meetings, preparing the minutes of the meetings and monitoring the implementation of decisions taken at meetings;
- Reporting the Parties not complying with any of their obligations to the Project Committee;
- Keeping the address list of Members (as defined in Article 4.5) and other contact persons updated and available;
- Collecting and reviewing information on the progress of the Project and submitting outline scientific reports and other deliverables (including financial statements and related certification), if required, to the TKI and other Parties;
- Promptly circulating the documents and information related to the Project to the Members;
- Providing, upon request, the Parties with official copies or originals of documents which are in the sole possession of the Coordinator when such copies or originals are necessary for the Parties to present claims.
4.3 The Project Committee shall inform the TKI of any change of the Coordinator.
4.4 The Coordinator shall not be entitled to act or to make legally binding declarations on behalf of any other Party.
4.5 The Parties shall establish a Project Committee for the duration of the Project. The Project Committee shall consist of one representative on behalf of each Party (hereinafter referred to as "Member"). Each Member or its representative will have one vote.
4.6 All Members:
- shall use their best efforts to be present or represented at all meetings;
- may appoint a substitute or a proxy to attend at any meeting; and
- shall participate in a cooperative manner in the meetings.
4.7 The Project Committee shall meet, either in person or by telephone, on a regular basis, at least twice a year, to discuss the progress of the Project and the Foreground generated so far.
4.8 Decisions shall be taken unanimously by the Members of the Project Committee in meetings where all Members are present or represented. Where the Project Committee is unable to reach consensus on the matter, an independent advisory board will be established in order to give a binding advice.
4.9 In respect of EZ’s special position in societal and political issues, Parties will grant EZ the right to delegate a governmental observer to attend meetings of the Project Committee (hereinafter referred to as: "EZ Delegate"). The EZ Delegate shall have no voting rights or other rights granted to the Members hereunder.
Article 5: Confidentiality
5.1 Each Party hereby undertakes for an unlimited period of time:
- not to use another Party’s Background for any other purpose than the purpose for which it was disclosed;
- not to disclose another Party’s Background to any third party without the prior written consent by the disclosing Party;
- to ensure that internal distribution of another Party’s Background shall take place on a strict need-to-know basis.
The aforementioned is not applicable to Background of which the receiving Party can demonstrate that it:
- was already publicly available at the time of its receipt or has become publicly available thereafter through no fault or action of the receiving Party;
- must be released to the public on grounds of statutory obligations, in which case the Party involved shall notify the owner of the Background without undue delay;
- has been obtained from authorised third parties without an obligation to maintain secrecy;
- has been developed independently by the receiving Party or any of its Affiliated Entities;
5.2 Each Party agrees:
- to use the Foreground solely in accordance with the rights granted to such Party in this Collaboration Agreement; and
- for the duration of this Collaboration Agreement as well as for a period of six months thereafter, not to disclose the Foreground to any third party without the prior written consent of all Parties;
with the exception of those cases that are explicitly agreed upon between the Parties in this Collaboration Agreement in deviation from this.
The aforementioned is not applicable to Foreground which:
- has become publicly available through no fault or action of any of the Parties;
- is published in accordance with Article 6 of this Collaboration Agreement;
- must be released to the public on grounds of statutory obligations, in which case the Party involved shall notify the other Parties without undue delay;
with the exception of those cases that are explicitly agreed upon between the Parties in this Collaboration Agreement in deviation from this.
5.3 Parties warrant to one another that their own managers, employees and third parties involved by/via Parties in accordance with Article 3.5, shall also fully observe the secrecy as mentioned in Article 5.1 and 5.2 during the same period.
5.4 Parties will have the right to disclose another Party’s Background to any of its Affiliated Entities solely for the execution of the Project, provided that such Affiliated Entities are bound by confidentiality obligations not less stringent than those contained in this Collaboration Agreement. For the avoidance of doubt, Parties will have the right to disclose Foreground to any of its Affiliated Entities, provided that such Affiliated Entities are bound by confidentiality obligations not less stringent than those contained in this Collaboration Agreement.
5.5 The confidentiality obligations under this Collaboration Agreement shall have no obstructing effect with regard to the communication with the TKI and EZ. The Party communicating with the TKI and EZ shall nevertheless use its reasonable efforts to ensure confidentiality.
Article 6: Publication
6.1 The Academic Project Partner shall be responsible for valorisation (including publications) of the non- protected Foreground (for which no application for IP Right(s) has been filed) by making such Foreground available to the general public under the conditions specified in this Article 6.
6.2 All Parties shall have the right to publish the Foreground, though with due observance of the confidentiality period specified in Article 5.2. During the term of this Collaboration Agreement, as well as for a period of two (2) years thereafter, the publishing Party shall provide the other Parties with the draft Publication at least 45 days before submission of the publication. Any objection to the planned publication shall be made in writing to the publishing Party within 30 days after receipt of the notice. If no objection is made within the time limit stated above, the publication is permitted.
An objection is justified if:
(a) the proposed publication includes another Party’s Background; or
(b) the objecting Party’s legitimate academic or commercial interests are harmed by the publication;
(c) the proposed publication includes matter for which IP Right(s) can be applied for; or
(d) the confidentiality period for the Foreground has not yet lapsed.
6.3 The objection has to include a precise request for necessary modifications. If an objection has been raised, the Parties involved shall discuss how to overcome the justified grounds for the objection on a timely basis (for example by amending the planned publication and/or by protecting information before publication), provided that the scientific integrity is preserved. The objecting Party shall not unreasonably continue the opposition, where appropriate actions are performed following the discussion.
6.4 If the objection is based on Article 6.2 (b) or (c), the intended publication can be delayed for up to six (6) months to allow an application for IP Rights to be filed or to modify the publication. As from the expiration of this term, the Academic Project Partner will be entitled to publish the proposed publication.
6.5 The provisions contained in this Article 6 shall not apply to communication with the TKI and EZ, including the submission of scientific reports to TKI and EZ as meant in Article 3.6.