Status: January 2012
Research and Development Contract
The following agreement has been drawn up
between ......
- hereinafter referred to as ‘…………..(XX)’ -
and
the Carl von Ossietzky University of Oldenburg, represented by the President, Prof. Babette Simon, Ammerländer Heerstraße 114 - 118, 26129 Oldenburg
- hereinafter referred to as ‘University’ -,
hereinafter referred to together as ‘contract partners’.
------
§ 1
Subject of the agreement
The University undertakes to provide the XX with the investigations, research and/or development services listed in the Statement of Tasks and Services section in Appendix 1 of this agreement, in the field of ...... (project field).
The objective of the project is the development of ………......
......
§ 2
Implementation of the project
(1) The project will be implemented under the direction of Ms/Mr ...... as project leader in close coordination with the XX. After completion of the project, the XX will receive a final report at the earliest possible date, though no later than . …….... weeks/months after completion, which will present the project results in a comprehensible manner and will include as attachments all documents and software programs related to the project.
(2) In order to ensure a final transfer of rights, the project leader undertakes to involve employees of the University and any other persons who do not have an employment relationship with the University (e.g. degree candidates, PhD candidates, students), only after they have signed the ‘Sample Statement for Hiring Involved Parties’ attached to this agreement as Appendix 2, wherein the duties of the project leader are also outlined, as well as the ‘Statement regarding Data Protection’ attached as Appendix 3, which the project leader will also sign. Furthermore, the project leader will, upon conclusion of the project, present to the XX a complete list of names of all persons (employees and other third parties) who were involved in the implementation of the project.
The University vouches for the project leader with regard to these commitments.
§ 3
Project duration
(1) The project will begin on and will end
after months
on .
The project will not be divided into subprojects.
The project is divided into the subprojects listed in Appendix 4 along with the applicable deadlines.
The duration of each subproject will be separately agreed between the parties
(2) If the University realizes that a deadline cannot be met, the University will inform the XX of the anticipated duration of the delay and the reasons for it. If the delay is due to an incorrect calculation by the University, the University will be liable for any expenses arising from the delay beyond the relevant deadline or, alternatively, extend the duration of the project and be liable for any the expenses arising from this extension, in accordance with the provisions of § 4.
§ 4
Charges for the provision of
research and development services
(1) The University will be paid a fee of € ______(hereinafter, ‘contract amount’), which includes the materials and the use of all facilities necessary for the Implementation of this agreement.
[N.B. The XX will be informed of the calculated contract amount as a lump sum. However, in the communications between the University (University of Oldenburg) and the project management, the calculation of the contract amount must be indicated within the framework of third-party funding, in line with § 22 Niedersächsiches Hochschulgesetz (Lower Saxony Higher Education Act) (NHG). In particular, § 22 Abs. 3 NHG should be taken into consideration when calculating the contract amount.]
(2) The contract amount is payable as follows:
[Dates, Amounts]
[N.B. Expenditure and financial obligations related to the project may only be settled/met once the University of Oldenburg has received the required funds. Pre-financing by the University is only possible in line with lawful budgetary conditions. These conditions must be taken into account when deciding upon the payment dates, so it is recommended that the payment date for each instalment be agreed in advance.]
(3) A condition for payment is that the University ensures that a proper invoice is issued for each amount due. If the implementation of the research project is subject to VAT for the University, VAT will be added to the contract amount in line with § 4 Abs. 1, at the amount specified by law, provided the University has specified the net amount, the tax amount with the individual tax rate and the gross amount in the invoice.
§ 5
Copyrights and user rights
(1) The XX is entitled to unrestricted use of the results without additional remuneration. These user rights include the revision or amendment of the results, provided no essential copyright protection stands in the way.
(2) The University is entitled to publish the results in accordance with § 8. Upon completion of the project, the acquired scientific knowledge may be utilized in other research and development projects.
(3) Regarding inventions relating to the provision of services, the contract partners will negotiate further with the aim of determining the specific conditions of the transfer of copyrights and user rights, in accordance with statutory provisions. The University undertakes to offer initial user rights to the XX on exceptional inventions created as a result of the project (initial negotiating rights).
(4) Notwithstanding clauses 1 to 3, the University is entitled to a simple, royalty-free, indefinite, irrevocable right to use any intellectual property in research and teaching.
§ 6
Existing proprietary rights
(1) Each contract partner will remain the sole owner of any inventions developed prior to the start of the project and any pending or granted copyrights (hereinafter, ‘existing proprietary rights’).
(2) Where existing proprietary rights are required for the implementation of the project and there is no conflict with the rights of a third party, the respective contract partners will grant each other limited, royalty-free and non-exclusive user rights for the duration and goal of the project.
(3) If existing proprietary rights are required for the valorization of the results which are generated during the implementation of the project and relate to the Statement of Tasks and Services in Appendix 1 (Research results) and do not infringe the rights of a third party, the University or the project leader will grant the XX a non-exclusive license to these rights based on market conditions, unless the University is engaged in promising negotiations with third parties regarding user rights at the time of the XX’s licensing request.
(4) The provisions in clauses 1 to 3 also apply to previously developed know-how and any existing copyrights or copyright licensing held by either contract partner prior to the start of the project.
§ 7
Results outside the project
Results generated during the implementation of the project that are not covered by the Statement of Tasks and Services outlined in Appendix 1 will be the property of the contract partner who generated them.
§ 8
Publication of research results
(negative and positive publication rights)
(1) The project leader undertakes to inform the University of all employee inventions in line with § 5 ArbnEG and to specify the University’s inventor shares. The project leader will waive the right to exercise his/her negative publication rights based on § 42 Nr. 2 ArbnEG with regard to all research results. The above provisions do not apply if, in exceptional cases, disclosure cannot be expected out of respect for the project leader’s academic responsibility and/or reputation. If such circumstances arise, the contract partners will negotiate a modification of the fees agreed in §4.
(2) The XX recognizes the legal obligation and interests of the University to publish the research results and will take this into account.
In return, the project leader and University undertake to refrain from publishing research results during the research project without the written consent of the XX and to refrain from otherwise disclosing research results – even in the pre-publication phase – to third parties, unless the XX intends to publish, in which case the XX will notify the University without delay. The project leader or University will provide the XX with the manuscript intended for printing or oral publication (hereinafter, ‘the publication’) at least sixty (60) days, or in urgent cases at least thirty (30) days, prior to giving the manuscript to third parties or presenting it for review. If, within forty-five (45) days, or fifteen (15) days in urgent cases, of receipt of the manuscript, the XX states that the publication affects its confidentiality interests, the contract partners will endeavour to establish agreement by modifying the manuscript. If the XX fails to respond within the forty-five (45) days, or in urgent cases within fifteen (15) days, the consent to publish will be deemed to have been granted. Such consent will not be unreasonably withheld.
Regarding planned publication of research results after the concluded period of the research project, consent from the XX is no longer required. However, the XX may object to the publication of research results which the XX views as copyrightable if publishing would affect a sensitive copyright application already in the preparatory stages. The XX will withdraw its objection, however, once the copyright application has been filed. This will occur no later than six (6) months after the research project ends.
§ 9
Confidentiality
(1) The University will treat all confidential information, documents and business processes (hereinafter, ‘information’) disclosed to it and its staff by the XX with the utmost confidentiality. The same obligation also applies to the XX in regard to the confidential information of the University and its staff as well as information regarding inventions and copyrightable research results of the University and those of its staff from the project that are covered by industrial property rights. The contract parties as well as the project leader will ensure that employees involved in the project implementation comply with the confidentiality obligation.
(2) The confidentiality obligation under clause 1 does not apply if and to the extent that
- the communicated information was already generally known at the time of communication or became generally known without the involvement of a contract partner,
- the communicated information was already known to the contract partner prior to its communication or was lawfully disclosed at a later date by a third party without infringement of the confidentiality obligation, or
- the communicated information was independently developed by employees of a contract partner, who had no access to or knowledge of the information.
(3) The confidentiality obligation in clause 1 will lapse 5 years after the project ends.
§ 10
Guarantee
The University undertakes to conduct the project with the utmost care and to take into account the present state of science and technology. The University has no additional warranty obligations. The University cannot guarantee that the potential research results generated will be commercially viable nor that they will be free of third-party copyrights (except those held by involved parties of the University engaged in the project). However, if and when the University becomes aware of conflicting copyrights, the University will inform the XX without delay.
§ 11
Liability
(1) Regarding claims for compensation by the XX on any grounds, the University and the project leader will only be liable in cases of intent or gross negligence. In cases of negligence, liability under Article 1 will be limited to the fee stated in § 4. Liability for consequential damage (e.g. loss of profit or other financial ramifications) will be excluded in all cases. Notwithstanding the above provision, the liability of the University for personal injury to the XX will be unlimited.
(2) The above liability limitations and exemptions also apply to employees and other vicarious Universitys of the main University.
§ 12
Marketing
The XX will appropriately credit the collaboration with the University for all products or services for which the University has offered and/or provided user rights in the following manner:
‘Based on an innovation of the Carl von Ossietzky University’.
§ 13
Right of termination; settlement in case of early termination
(1) This agreement may only be terminated for cause by either party. One such cause for termination for both contract partners is the early termination of the full-time employment of the project leader with the University during the project.
(2) In the event of an early termination of the project for cause, the University will transfer all documents on hand at the time to the XX. The University will receive the pro rata payment from the XX in accordance with § 4, and in line with the work that has been completed by the University. In addition, the XX will reimburse the University for expenses (such as personnel costs) incurred after this date that still apply to the project and the fulfilment of legal obligations unless the University, in breach of its duty, fails to ensure the timely conclusion of these legal obligations. The expenses to be reimbursed afterwards in the event of an early termination will not exceed the total amount estimated for the implementation of the project.
(3) In the event of an early termination of this agreement, the confidentiality obligations of § 9 will continue to apply for 5 years after the termination.
§ 14
Other provisions
(1) Supplementary oral agreements are invalid. Amendments or additions to this agreement, including annulment of this clause, must be done in writing.
(2) In the event of a dispute about the interpretation of this agreement, the Vorschriften des Dienstvertrages (provisions of the employment contract) as found in §§ 611 et seq. BGB, will apply.
(3) The place of jurisdiction for all disputes arising out of or in connection with this agreement will be Oldenburg.
(4) The invalidity or unfeasibility of one or more of the provisions of this agreement will not affect the validity of the remaining provisions. The contract partners undertake to replace any invalid or unfeasible provision with a valid, feasible one that matches most closely the intent of the invalid or unfeasible provision. This also applies to issues not covered by this contract.
______Oldenburg, ______
Place, Date
______
XX University
______
Project Leader
Appendices:
Appendix 1: Statement of Tasks and Services (to be created on an individual project basis)
Appendix 2: Sample Statement for Hiring Involved Parties
Appendix 3: Statement regarding Data Protection
Appendix 4: Schedule (to be created on an individual project basis)
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