MAGIC LINK COLLABORATION AGREEMENT
Cover and contents pages
This Agreement is made this [date] day of [month] 2011
Between
1.The University of Manchester (a royal Charter corporation registered under number RC 000797, an exempt charity) having an office at Oxford Road, Manchester M13 9PL (hereinafter “Manchester”)
and
2.The University of Birmingham whose registered office is at [legal address] Edgbaston. Birmingham, B15 2TT (hereinafter “Birmingham”)
and
3.Cardiff University whose registered office is at Cardiff University, Mckenzie House, 30-36 Newport Road, Cardiff CF24 0DE (hereinafter “Cardiff ”)
and
4.The University of Durham established under royal charter with company number RC000650 and whose registered address is University Office, Old Elvet, Durham, DH1 3HP (hereinafter “Durham ”)
and
5.The University of East Anglia whose registered office is at University of East Anglia, Norwich, NR4 7TJ(hereinafter “East Anglia”)
and
6.The University of Exeter whose registered office is at The University of Exeter, Northcote House, The Queen's Drive, Exeter, Devon, EX4 4QJ, (hereinafter “Exeter”)
and
7.Keele University whose registered office is at [legal address] (hereinafter “Keele”)
and
8.Lancaster University an educational body incorporated by Royal Charter, whose administrative offices are located at University House, Bailrigg, Lancaster, LA1 4YW ("the University") (hereinafter “Lancaster”)
and
9.The University of Leeds whose registered office is at [legal address] (hereinafter “Leeds”)
and
10.The University of Leicester a charitable body incorporated by Royal Charter having Registration Number RC000659, and having its administrative offices at Fielding Johnson Building, University Road, Leicester LE1 7RH whose registered office is at [legal address] (hereinafter “Leicester”)
and
11.The University of Liverpool whose registered office is at The University of Liverpool of The Foundation Building, 765 Brownlow Hill, Liverpool L69 7ZX (hereinafter “Liverpool”)
and
12.Loughborough University whose registered office is at [legal address] (hereinafter “Loughborough”)
and
13.The University of Newcastle upon Tyne whose registered office is at King's Gate, Newcastle upon Tyne, NE1 7RU, (hereinafter “Newcastle”)
and
14.The University of Nottingham whose registered office is at a University established and existing under the Laws of the United Kingdom, and having its principal office at Trent Building, University Park, Nottingham, NG7 2RD [legal address] (hereinafter “Nottingham”)
and
15.The University of Reading whose registered office is at The University of Reading, Whiteknights, PO Box 217, READING, Berkshire, RG6 6AH, United Kingdom (hereinafter “Reading”)
and
16.The University of Sheffield whose registered office is at [legal address] (hereinafter “Sheffield”)
and
17.The University of Southampton (a royal Charter corporation registered under number RC 000668, an exempt charity) having an office at Highfield, Southampton, SO17 1BJ (hereinafter “Southampton”)
and
18.The University of Surrey, incorporated by Royal Charter in 1966 and having its campus in Guildford, Surrey GU2 7XH, United Kingdom (hereinafter “Surrey”)
and
19.The University of York whose registered office is at [legal address] Heslington, York, YO10 5DD (hereinafter “York”)
(The aforesaid organisations and any additional parties are hereinafter referred to individually as “Party” and collectively as “the Parties”).
WHEREAS:
A.The Parties to this Agreement wish to collaborate on a research project entitled "MAGIC (Mathematics Access Grid Instruction and Collaboration)".
B.Subject to the conclusion between the Parties of an Agreement governing their collaboration, the Sponsors have announced their intention to make available a grant in respect of the Project, subject to equivalent financial contributions and contributions in kind by the Parties all as set out in this Agreement.
IT IS HEREBY AGREED as follows:
1.DEFINITIONS AND INTERPRETATION
1.1The words and phrases below shall have the following meanings:
Academic Partymeans a UK university of equivalent organisation.
Academic Steering Committeemeans the individuals nominated by each of the Parties, pursuant to Clause 3 of this Agreement, in order to supervise the carrying out of the Project.
Affiliatesmeans any entity directly or indirectly controlling or controlled by or in common control with such entity, where "control" is defined as the ownership of at least fifty percent (50%) of the equity or beneficial interests of such entity, or the right to vote for or appoint a majority of the board of directors or other governing body of such entity.
Background IPRmeans any IPR controlled or owned by any Party prior to the date of commencement of this Agreement or IPR generated by any of the Parties independently of the Project and controlled or owned by that Party or any IPR to which the Party has the necessary rights for the purpose of the Project.
Commercial Party or Partiesmeans any commercial party who may participate in the Project including their respective Affiliates.
Coordinating Partymeans the Party that, under the grant, is responsible for the overall coordination of the Programme and its management; in the first instance the Coordinating Party is Manchester.
Chairmanmeans the independently appointed chairman of the Academic Steering Committee as stated in Schedule B.
Contributionsmeans the financial contributions as set out in the itemised budget contained in Schedule A and other non-financial contributions of the Parties including, without limitation, those set out in Schedule A.
Director of MAGICmeans the individual designated from time to time as being responsible for the overall management of the Project.
DTZ Final Reportmeans the final report on MAGIC produced by the company DTZ as given in Schedule H. [m1]
IPRmeans any intellectual property rights of any description including but not limited to patents, copyrights, design rights (registered or unregistered), trademarks, know-how and database rights.
MAGIC Sservicemeans the service as provided to the Parties as listed in Schedule E.
MAGIC Websitemeans the website from the Background IPR and the new website as mentioned in Schedule E.
Management Committeemeans the executive body comprising the Director of MAGIC and at least 4 representatives appointed by the Academic Steering Committee. The terms of reference of the Management Committee are as in Schedule D.
RCSmeans the Manchester Research Computing Services[m2].
RAE 2008means the Research Assessment Exercise 2008.
Research Party or Partiesmeans any one or more of the following signatories to this Agreement, namely University of Manchester.
Research Council Grantmeans the offer made by the Engineering and Physical Sciences Research Council to the Parties.
Resulting IPRmeans any IPR arising from and developed in the course of the Project by any of the Parties.
Sponsorsmeans the EPSRC
The Effective Datemeans 1st October 2011 or as otherwise mutually agreed between the Parties.
The Grant Offermeans the offer made by the EPSRC to the Parties as contained in the oOffer lLetter annexed hereto as Schedule G.
The ProjectMeans the research programme entitled MAGIC (Mathematics Access Grid Instruction and Collaboration) to be undertaken by the Parties in accordance with The Project Plan.
The Project PlanMeans the plan identifying the aims, objectives and methodology of the Project as stated in Schedule F.
1.2In this Agreement, unless otherwise expressly provided or unless the context otherwise requires:-
1.2.1References to the singular include the plural and vice versa.
1.2.2References to words denoting any gender shall include all genders.
1.2.3References to persons include companies, partnerships, government departments and agencies and all other forms of body corporate or unincorporate.
1.2.4References to Clauses and Schedules are to Clauses of, and Schedules to, this Agreement.
1.2.5References to laws and statutory provisions shall include reference to any subordinate legislation made pursuant thereto and shall be construed as referring to those laws, provisions and subordinate legislation as respectively amended or re-enacted from time to time.
1.2.6The headings of this Agreement are for ease of reference only and are not part of this Agreement for the purposes of construction.
1.2.7Any undertaking by a Party not to do an act or thing shall be deemed to include an undertaking not to permit or suffer such act or thing to be done by another person.
1.2.8References to the Parties include their respective successors in title, permitted assigns and legal personal representatives.
1.3The Schedules and Recitals form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and accordingly any reference to this Agreement includes the Schedule and Recitals.
1.4In the event of any conflict between the terms of this Agreement and the terms of the Research Council Grant conditions and/or Tthe Grant Offer conditions then the terms of the Research Council Grant conditions and/or Tthe Grant Offer conditions will prevail. Subject to the foregoing, this Agreement shall take precedence over any other agreement signed between the Parties relating to the subject matter hereof and over any other documents referred to herein.
2PURPOSE AND, SCOPE AND THE ROLE OF COORDINATING PARTY
2.1The Project shall be undertaken at all times by the Parties in accordance with the terms of the Research Council Grant conditions and Tthe Grant Offer conditions.
2.2Subject to Clause 2.1, the terms of this Agreement shall govern the rights and obligations of the Parties. These obligations include their respective Contributions and remuneration, the management structure and all other terms of collaboration to be complied with in connection with the Project.
2.22.3Coordinating Party shall use reasonable endeavours to provide the MAGIC Service to the Parties as set out in Schedule A and Schedule E.
3PROJECT MANAGEMENT
3.1Each Party shall appointone individual to the Academic Steering Committee pursuant to Schedule B.
3.2The terms ofand reference, remit, quorum etc… of the Academic Steering Committee are stated in Schedule B.
3.3The Programme Committee is responsible for academic aspects of the MAGIC service.
3.4The terms and reference, remit, quorum etc… of the Management Programme Committee are stated in Schedule C.
3.5The Management Committee is the executive body of the Project and shall be appointed by the Academic Steering Committee pursuant to Schedule D.
3.6The terms and reference, remit, quorum etc… of the Management Committee are stated in Schedule D.
3.7The interaction of the three committees is highlighted in the Project Plan.
3.8[Insert]Professor Nigel Peake of the University of Cambridge will be appointed as the Chairman in the first instance.
4DURATION
This Agreement shall remain in full force and effect for the period of five (5) years from the Effective Date unless terminated earlier in accordance with the provisions of Clause 7 or Clause 12 or otherwise extended by consent of the Sponsors and the Parties in accordance with the provisions of Clause 21.
5RESPONSIBILITIES AND LIABILITIES
5.1Each Party shall make its respective Contributions to the Project as set out in Schedule A.
5.2Each Party confirms that it will act in good faith when complying with its respective obligations under this Agreement and shall use due skill, care and attention in their performance their obligations as set out in the Project Plan.
5.3In respect of Background IPR, Resulting IPR, information and/or materials supplied by one Party to another under this Agreement, the supplying Party shall be under no obligation or liability and no warranty condition or representation of any kind is made, given or to be implied as to the sufficiency, accuracy or fitness for purpose of such information or materials or, the absence of any infringement of any proprietary rights of third parties by the use of such information and materials and the recipient Party shall in any case be entirely responsible for the use to which it puts such information and materials. Notwithstanding the foregoing, no Party shall supply Background IPR to another Party under this Agreement in the knowledge that the use of the Background IPR by that Party will infringe the proprietary rights of any third parties. For the purposes of this Clause 5.3, “knowledge” of a Party shall mean the actual knowledge of its researchers actively involved in the Project
5.4As relates to its respective Contributions to the Project Eeach Pparty shall fully comply with its commitments under the general law (including for the avoidance of doubt the Data Protection Act 1998and the Bribery Act 2010any subsequent amendments, extensions thereof).
5.5Each Party shall indemnify each of the other Parties, within the limits set out in this Clause 5, in respect of all and any liability resulting from negligent acts or omissions of itself, its employees or its agents provided always that such indemnity shall not extend to claims for indirect or consequential loss or damages such as, but not limited to, loss of profit, revenue, contracts or the like.
5.6Except in cases of death or personal injury caused by negligence, each Party’s total liability in connection with this Agreement shall not exceed that Party’s financial contribution as set out in Schedule A.
5.55.7For the avoidance of the doubt the Parties take no responsibility for any interpretation by the other Parties of the assessments of students that they provide pursuant to the Project. Each Party agrees to use the assessment provided by the other Parties in accordance with their internal regulations and policies. Each Party agrees to handle any associated misconduct and appeals in accordance with their internal regulations and policies.
6ADDITION OF NEW PARTIES
6.1New parties may join the Project with the unanimous agreement of all Parties and the Sponsors, subject to Clause 6.2.
6.2New parties shall be bound by the terms of this Agreement and such other conditions as the Academic Steering Committee may specify. If any such new parties are Ccommercial pParties they may be required to pay a sum towards the cost of the Project, the level of which will be determined by the Academic Steering Committee. Factors determining such sum may include (without limitation) the future contribution of the new party and the benefit accruing to the new party on joining the Project.
7WITHDRAWALS
7.1Any Party (the “Withdrawing Party”) may withdraw from the Project, by giving 12 months written notice to the Management Committee, with the unanimous consent of the other Parties and subject to such additional conditions as the other Parties may unanimously decide.
7.2In the event of withdrawal of a Party the Management Committee will make all reasonable attempts to reallocate the obligations of the Withdrawing Party under this Agreement to a third party acceptable to the remaining Parties and the Sponsors provided that such third party agrees to be bound by the terms of this Agreement and any additional conditions that the Management Committee may choose to apply in accordance with the provisions of Clause 6.2.
7.3The Withdrawing Party shall not be entitled to recover any of its costs or payments made or incurred in connection with the Project after the date of its withdrawal and shall comply with all conditions imposed pursuant to Clause 7.1 which shall include (without limitation);
7.3.1rights granted to the other Parties in respect of the Withdrawing Party’s Background IPR shall continue for the duration of the Project subject to the restrictions contained in this Agreement;
7.3.2to the extent that exploitation of any other Party’s Resulting IPR is dependent on the Withdrawing Party’s Background IPR, then the Withdrawing Party shall, subject to any existing third party obligations, grant to the other Parties a non-exclusive licence to such Background IPR on fair and reasonable terms to be agreed;
7.3.3the Withdrawing Party shall grant to the other Parties a non-exclusive, royalty-free licence to use the Withdrawing Party’s Resulting IPR for the purposes of carrying out the Project. For the avoidance of doubt any exploitation of such Withdrawing Parties Resulting IPR will be dealt with in accordance with clause 10;
7.3.4all rights acquired by the Withdrawing Party(or any Affiliates) to the Background and Resulting IPR of the other Parties shall cease immediately on its withdrawal other than in respect of the Withdrawing Party's interest in any jointly owned IPR.;
8FINANCIAL MANAGEMENT
8.1The financial arrangements for the Project shall be overseen by the Management Committee and shall be as set out in Schedule A.
Any Party receiving funds from a Sponsor which are due to another Party under the terms of this Agreement shall notify that Party of the receipt of said funds as soon as possible and in any event within 30 days of receipt of said funds. The recipient Party shall invoice the paying Party who shall then as soon as possible and in any event within 30 days of receipt of the invoice transfer such funds to the recipient Party.
8.2The Parties, other than the Coordinating Party, shall seek reimbursement of the cost due to them pursuant to Schedule A from the Coordinating Party by means of actual cost invoicing quarterly in arrears as set out in Schedule A.
8.3The Coordinating Party shall invoice the other Parties for the annual contributionsost payable pursuant to Schedule A annually in advance.
8.4The Parties shall pay the relevant invoices referred to in Clauses 8.2 and 8.3 above within thirty days of receipt provided that the invoices relate to legitimately and appropriately incurred expense on the Project. Payment by The Coordinating Party will also always be conditional upon its receipt of sufficient funds from the Sponsors.
8.5The Director of MAGIC will prepare and submit to the Management Committee within three months of each anniversary of the Effective Date, an account of all income and expenditure in connection with this Project during the preceding year under consideration.
8.6The Party employing the Director of MAGIC shall procure that the Director of MAGIC shall permit an independent chartered or certified public accountant appointed by any Party, at the inspecting Party's expense to examine all books and records of the Director of MAGIC relating to this Agreement provided: -
8.6.1reasonable prior written notice is given to the Director of MAGIC;
8.6.2access is only required during normal working hours; and
8.6.3the inspecting Party and the auditor shall keep and shall use all reasonable endeavours to procure that any representatives of it shall keep confidential any information that it may acquire in the exercise of its rights under this Clause.
9IPR AND EQUIPMENT[m3]OWNERSHIP[m4]
9.1Subject to Clause 7.3, nothing contained in this Agreement or any licence agreement pertaining to this Project shall affect the absolute and unfettered rights of each Party in all inventions, discoveries and intellectual property contained in its Background IPR and the provisions of Clause 13 shall apply to all such Background IPR.
9.19.2Each Party shall promptly disclose in confidence to the other Parties all Resulting IPR during the term of this Agreement and all Parties shall co-operate, where required, in relation to the preparation and prosecution of patent applications and any other Resulting IPR applications, and in relation to any legal proceedings concerning such patents and patent applications and any other Resulting IPR applications.