Background & guidenotes for use
This template Research Collaboration Agreementis intended to be used forindividual research collaborationsbetween two or more MACH Group parties from time to time.
Each time it is used, this Research Collaboration Agreement (once the particulars are completed in Schedule 1 and approved internally by each party’s PI)will be signed off by anauthorised signatory for each party who is able to legally bind his/her organisation. Please check your own organisation’s processes and who may sign thisResearch Collaboration Agreement.
This template Research Collaboration Agreementassumes that there is no particular lead or co-ordinating party in respect of any research collaboration for which it is used.It accommodates the parties making “Materials”available for research collaborations and for small to medium amounts of funds to be expendedby the parties.
However,where more complex collaborations are proposed, especially those involving IP commercialisation, or head funding agreement terms and conditions, a more detailed and tailored collaboration agreement willlikely be more appropriate and the parties should involve their respective legal advisers to assist.
It is important that each party owns, or has unencumbered rights to use,the Background IPthat it makes available for the collaboration – see clause 9.1.
[PARTY 1]
(ABN [INSERT])
and
[PARTY 2]
(ABN [INSERT])
[ADD ADDITIONAL PARTIES AS REQUIRED]
MACH Template Research Collaboration Agreement Version 2.0 dated 31 Oct 2016
MELBOURNE ACADEMIC CENTRE FOR HEALTH (MACH)
RESEARCH COLLABORATION AGREEMENT
MACH Template Research Collaboration Agreement Version 2.0 dated 31 Oct 2016
Research Collaboration Agreement
THIS RESEARCH COLLABORATION AGREEMENT is made on the date it is executed by the last Party to sign.
PARTIES:
[PARTY1] (ABN [INSERT]) of [insert address]([insert short form Party name])
AND
[PARTY 2] (ABN [INSERT]) of [insert address] ([insert short form Party name])
[INSERT ANY OTHER PARTIES]
INTRODUCTION:
A.The Parties have agreed to collaborate on the Project in accordance with the terms and conditions set out in this Agreement.
OPERATIVE PROVISIONS:
1.DEFINITIONS AND INTERPRETATION
1.1In this Agreement unless the contrary intention appears:
Agreement means this Research Collaboration Agreement, including any schedules and annexures and as may be amended from time to time in accordance with its terms;
Authorised Representative means the nominated personnel of eachParty as set out in Item 5 of the Schedule;
Background Intellectual Propertyin relation to the Project means inventions, technology, know-how and Confidential Information and Materialsand all Intellectual Property Rights belonging to or under the control of a Party as at the Commencement Date of the Project or developed or created by a Party after that Commencement Date but independently to and separately from that Research Project, which are made available for the conduct of that Research Project, including as set out in Item 4 of the Schedule, including all improvements to Background Intellectual Property;
Business Daymeans in relation to anything that needs to be done or received, a day not being a Saturday, Sunday or declared public holiday in Melbourne[or a holiday of any party (being a University and as published in that University’s academic calendar from time to time];
Commencement Datemeans the date set out in Item 2 of the Schedule;
Confidential Informationin relation to a Party, means all knowledge, information (including scientific, business, patient, staff and financial information), inventions, improvements, documents, drawings, samples, devices, demonstrations, trade secrets, know-how and other information of whatever description and all other commercially valuable information of that Party and which that Party regards as confidential to it (or which it designates as confidential) and all copies, notes and records as well as all related information generated by, or that comes into the possession (howsoever occurring) of, the other Party based on or arising out of any such disclosure, but does not include information which:
(a)is in the public domain at the time of disclosure to the other Party;
(b)is published or otherwise becomes part of the public domain but not in breach of any other obligations of confidence;
(c)at the date of disclosure to the otherParty was already properly in the possession of the other Party without an obligation of non-disclosure to that Party;
(d)is independently created by or on behalf of the other Party by persons who had no knowledge of the disclosed information; or
(e)is required to be disclosed by law;
Intellectual Property Rightsmeans statutory and other proprietary rights in respect of trademarks, patents, circuit layouts, copyright, confidential information and all other rights with respect to intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967;
Material means any tissue, blood, or other biospecimen made available for the Project and any genetic or biochemical derivative derived from that tissue blood or biospecimen, and any other material agreed to be provided under or in relation to the Project, and includes any derived material that contains the Material or any data with respect to such derived material or improvement or modification that came into existence as a result of carrying out the Project;
Partymeans a party to this Agreement, its successors and permitted assigns and persons for whom it is responsible;
Projectmeans the research project described in Item 1 of the Schedule;
ResearchResultsmeans all results of the Project including, without limitation, outcomes, deductions, conclusions, assumptions, inferences, or suppositions drawn, processes, formulae, reports, software, designs, and research data produced by Parties in the conduct of the Project and all Intellectual Property Rights therein but specifically excludesMaterial;and
Termination Dateis the date set out in Item 3 of the Schedule.
1.2In this Agreement, unless the contrary intention appears:
(a)the singular includes the plural and vice versa;
(b)a gender includes all genders;
(c)a reference to an individual, person, corporation, trust, partnership, unincorporated body or other entity includes any of them or any other legal person;
(d)reference to a Party includes that Party’s employees and authorised sub-contractors and agents;
(e)a reference to a clause or schedule is a reference to a clause of, or a schedule to, this Agreement;
(f)references to the words “include” or “including” are to be construed without limitation;
(g)a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(h)reference to an “agreement” or “document” is to the agreement or document as amended, replaced or otherwise varied, except to the extent prohibited by this Agreement or by that other agreement or document;
(i)a reference to writing includes reference to printing, typing and other methods of producing words in a tangible and permanently visible form;
(j)if a word or expression is given a meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
(k)headings are for convenience only and do not affect interpretation;
(l)the recitals form part of this Agreement; and
(m)this Agreement is not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.
1.3Inthe event of any conflict or inconsistency the following order of precedence shall apply (in descending priority):
(a)the terms and conditions of the clauses of this Agreement; and
(b)the Schedule.
2.TERM OF THIS AGREEMENT
2.1This Agreement commences on the Commencement Date and shall be ongoing until the Termination Date or unless otherwise terminated in accordance with its terms.
3.CONDUCT OF RESEARCH PROJECTS
3.1The Parties shall use all reasonable endeavours to carry out the Project to a high standard and follow the Australian Code for the Responsible Conduct of Research ( the National Statement on Ethical Conduct in Human Research ( ).
3.2Each Party must ensure that all necessary ethical, administrative and governmental approvals relating to the Projectare in place before commencing the Project.
4.PROJECT FUNDING & SUPPLIES
4.1There will be no financial obligation and no funding of any sort required from eachParty for the conduct of the Projectother thanas set out in Items 6 and 10 of the Schedule.
4.2Each Party shallsupply in a timely and diligent manner all funds, personnel, equipment, materials (including Materials) and other things necessary to fulfil its responsibilities under this Agreement for the Project. Any specific supplies to be provided by a Party are listed inItem 6and Item 10of the Schedule.
4.3In undertaking the Project, each Party must ensure that it obtains and/or uses Material in accordance with all applicable laws, regulations, policies guidelines and codes of conduct.
5.REPORTING
TheParties will regularlyhold meetings (at least as set out in Item 9 of the Schedule) to update the other on progress of the Project. A final report will be compiled and signed off as set out in Item 9 of the Schedule by the Authorised Representative or the Scientific Representative of each Party prior to the Termination Date or such later date as agreed by the Parties.
6.INTELLECTUAL PROPERTY
6.1A Party’s Background Intellectual Property shall remain vested solely in that Party and nothing in this Agreement shall be deemed to give the other Party any rights to use or commercialise the same except as expressly provided by this Agreement.
6.2Each Party:
(a)agrees that it will not have any claim, ownership or interest in the other Party’s Background Intellectual Property; and
(b)grants the other Party a non-exclusive, fee and royalty-free licence for the use of any Background Intellectual Property made available by the granting Party for the purpose of carrying out the Project only.
6.3The following provisions apply whenever a Party (Material Provider) provides Material to another Party (Material Recipient) as part of the Material Supplier’s Background Intellectual Property:
(a)The Material Recipient must:
(i)only use the Material for the purpose of the Project;
(ii)not provide the Material to any third party;
(iii)not use the Material in humans;
(iv)not seek any form of registration of Intellectual Property or other statutory protection of the Material;
(v)not seek to reverse engineer the Material or otherwise determine the origin of the Material (unless otherwise expressly agreed by the parties);
(vi)comply with all laws and applicable codes of conduct in relation to use of the Material;
(vii)obtain all ethical clearances that are necessary or desirable to use the Material for the purpose of the Project; and
(viii)co-operate with the Material Provider and act reasonably in connection with this Agreement and receipt of the Material.
(b)The Material Recipient acknowledges and agrees that, as between the parties, the Material Provider retains title to the Material provided to the Material Recipient under this Agreement.
(c)The Material Recipient acknowledges and agrees that:
(i)the Material Provider does not make any representation or give any warranty that the Material is fit for any particular purpose;
(ii)the Material Provider does not make any representation or give any warranty that the use of the Material by the Material Recipient or transfer of the Material to the Material Recipient will not infringe the Intellectual Property or other rights of any third party;
(iii)the Material is provided on an “as is” basis; and
(iv)nothing in this Agreement grants the Material Recipient a licence or assigns to the Material Recipient any Intellectual Property of the Material Provider.
6.4The Parties acknowledge and agree that ownership of the Research Results of the Project shall be as stated in Item 7of the Schedule, unless otherwise agreed in writing between the Parties.
6.5If one Party wishes to use any jointly-owned Research Results,or any Research Results owned on a tenancy-in-common basis, for commercial purposes, the co-owning Partiesagree to negotiate in good faith an agreement allowing for such commercial use of the relevant Research Results. The Parties will also negotiate in good faith terms on whichany Background Intellectual Property made available pursuant to clause 6.2(b)is made available to be used forcommercial purposes.If the Parties cannot reach agreement on commercial terms regarding use of either Research Results or Background Intellectual Property in accordance with this clause 6.5, the matter must be dealt with in accordance with clause 13.
6.6In respect of jointly owned Research Results or any Research Results owned on a tenancy-in-common basis:
(a)the Parties will liaise in good faith in relation to the best methods to protect any Intellectual Property in the Research Results to ensure that such Intellectual Property is protected to the extent practicable and in a manner which is beneficial to the Parties; and
(b)any joint-owningParty may apply for monopoly protection of thatIntellectual Property which must, unless otherwise agreed between the jointly co-owning Parties, be filed in the joint names of the joint co-owning Parties, but if such Intellectual Property becomes registered in the name of one Party only, that registered Party shall do all things necessary to have the Intellectual Property registered jointly in the names of all co-owningParties.
6.7Wherever a Party is the sole owner of any Research Results and no applicable commercialisation restrictions are stated in Item 7of the Schedule, that Party:
(a)enjoys unrestricted use rights in respect of those Research Results, subject to clauses6.6(b)and 7; and
(b)grants the other Party or Parties a non-exclusive, fee and royalty-free licence for the use of those Research Resultsfor the purpose of carrying out the Research Project to which those Research Results relate, and also generally for the licensee Party’s or Parties’ own non-commercial, educational, and teaching purposes.
7.FURTHER OPPORTUNITIES
7.1Where one Party (First Party):
(a)wishes to undertake anon-commercial research project usingany Research Results that it enjoys the rights to use; and
(b)in order to undertake such research project, the First Party needsto also use Background Intellectual Property or resources of a kind that another Party owns or controls,
the First Party must, at least 30 days prior to commencing such research project (Notice Period), provide written notice to the other Party of the details of the proposed research project and the First Party’s intention to undertake it, andthe other Party may, within the NoticePeriod,elect by written notice to the First Party, to participate in the relevantresearchproject.
7.2Any research project undertaken bythe Parties pursuant to clause 7.1shall (unless otherwise mutually agreed in writing between the Parties) utilise substantially similarterms of this Agreement and the Parties must use reasonable endeavours to negotiate a document substantially in the same form as this Agreement for the relevant project.
7.3Where either:
(a)the other Party fails to elect by written notice within the Notice Period that it wishes to co-operate in that further non-commercial research; or
(b)provides written notice to the First Party during the Notice Period that the other Party does not wish to participate in the relevant research project,
the First Party shall have the unrestricted right to undertake the relevant research project with a third party or parties (subject at all times to the First Party complying with all other relevant terms and conditions of this Agreement).
8.CONFIDENTIALITY AND PUBLICATION
8.1Subject to the remaining provisions of this clause 8, each Party will treat all Confidential Information of any other Party as confidential and will not, without the consent of the other relevant Party, disclose or permit the same either to be disclosed to third parties or to be used, except solely as contemplated by this Agreement.
8.2Each Party must use all reasonable endeavours to ensure that its representatives comply with the obligations of confidentiality imposed upon it under this clause 8 as if those representatives were bound in the same way.
8.3Each Party must advise each other Party as soon as practicably possible of any breach of any confidentiality obligations under this Agreement of which it becomes aware.
8.4A Party may disclose Confidential Information if required to do so by law or to its professional advisers, subject to the relevant adviser being bound by similar obligations of confidentiality, or if necessary, entering into an appropriate confidentiality undertaking.
8.5Wherethe Parties jointly own the Research Results of the Project a Party may publish the Research Results, subject to it complying with the following:
(a)prior to any publication, the Party must provide the other Party with full details of the Research Results it proposes to publish and the nature of the publication; and
(b)the other Party must notify the first Party whether permission to publish has been granted or refused within 30 days of the request; and
(c)if the other Party fails to notify the first Party of its decision under clause 8.5(b) within the said 30 days shall be deemed to have consented to the proposed publication by the first Party; and
(d)any other Party may only refuse a request to publish if, in that other Party’s reasonable opinion, the publication is likely to jeopardise:
(i)the protection of Research Results under any statute of monopoly; or
(ii)the successful commercialisation of the Research Results by the Party with such rights, or
(iii)the other Party’s Confidential Information.
8.6Each Party’s obligations under this clause 8 shall survive termination or expiration of this Agreement.
9.WARRANTIES
9.1Each Party warrants that it is the owner of, or has the right to provide and use, its Background Intellectual Property for theProject free from all encumbrances and that to the best of its knowledge and belief at the time of entering into this Agreement, no third party has any rights or claim over the same.
9.2Each Party warrants that, to the best of its knowledge and belief at the time of entering into this Agreement, it is not aware of any matter, fact or circumstance that is likely to adversely affect its ability to meet its obligations in relation to this Agreement, but if, during the term of this Agreement a conflict, or risk of conflict of interest, arises it shallpromptly notify the other Party or Parties immediately in writing of that conflict or risk.
9.3Each Party will exercise all reasonable care and diligence in carrying out its obligations under this Agreement and in relation to the Project, but to the fullest extent permitted at law each Party excludes all warranties, conditions or terms, implied in fact or at law, including any warranties that the Research Results are of merchantable quality or are fit for a particular purpose.