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Please click on KT Terms and Conditions to download a copy in Microsoft Word (80KB)
These are the terms and conditions for Applicants and shall be referred to as
"Terms and Conditions for Research and Development Knowledge Transfer Contracts (April 2002 Edition)"
Following your application, you have received a letter of offer from us (HGCA referred to as "us" or "we") in relation to a contract for research and development. This document sets out the terms and conditions that apply to the contract. You need to read them carefully. Words with capital letters have special meanings, which shall either have been set out in the letter of offer (referred to below as "the Offer") or are set out in the text of this document.
1 Subject to the terms set out below and any subsequent correspondence between us, varying the terms, we shall pay to you amounts up to the agreed sum specified in the Offer.
2 We have agreed to enter into this commitment on the basis of your assurance that:
(a) you have taken all reasonable care in preparing the contents of the application for the contract for research and development (the "Application");
(b) you shall use all reasonable efforts using at least reasonable skill and care to achieve the objectives set out in the Application, following the methods and complying with the time period and the statement of costs all set out in the Application and Offer, in order to complete the Project;
(c) you shall bring to our attention in writing any circumstances likely to affect the progress of the Project or the time in which it shall be completed.
3 The Project shall start on the date stated in the Offer ("Commencement Date") and shall end on the date stated in the Offer ("Completion Date"). The Offer will lapse if the Project is not started by the Commencement Date and we reserve the right to postpone the Commencement Date or the Completion date or both at our discretion.
4 Project Liaison and Management
Subject to clause 2, you shall have responsibility for co-ordinating work on the Project and ensuring that all parties involved fulfil their responsibilities including, without limitation, as follows:
- you shall be responsible for the management of the scientific and technical aspects of the Project and you will be responsible for producing a brief summary report (the "Report") in accordance with clause 7 and in conjunction with other collaborator(s) (if any);
- you shall employ a finance co-ordinator who shall be responsible for the submission of claims for reimbursement of expenditure.
5 Contract Price and Approval of Expenditure
(a) The contract price shall be that set out in the statement of costs in the Offer, or any subsequent variation agreed between us in writing and shall include approved expenditure. The contract price shall be paid in accordance with clause 6. We shall not reimburse you for any increase in your costs (including, but without limitation, any increase due to nationally agreed pay awards or increased rates for national insurance or superannuation) unless we agree in writing in advance of you incurring such expenditure to reimburse you for such increases.
(b) Before beginning the Project, you shall provide us with a breakdown of expected expenditure for each year of the project. We shall consider the estimated expenditure and consider whether we shall approve such expenditure. We shall indicate to you in writing what expenditure is approved.
(c) Any carrying forward of savings must be submitted to us for approval prior to 1 June in each Financial Year.
(d) We shall reimburse you up to a maximum of 50% of the cost of equipment and facilities ('Capital Equipment Expenditure') where this has been specified in the application.
6 Claims
(a) Claims for payment for the approved expenditure and Capital Equipment Expenditure shall be submitted to us by you at the end of the project unless we agree otherwise. We shall provide a form on which you should make any claim for reimbursement of expenditure. The final claim must be submitted to us within three months of the Completion Date unless we agree otherwise. We shall normally make payment to you within 1 month of receiving a claim subject to clause 7(d). Any claims for reimbursement of Capital Equipment Expenditure should be separately identified in the claim for reimbursement.
(b) Subject to the terms of clause 8(d), if the Project fails to meet any milestone set out in the Offer, we may withhold all or part of the contract price or any reimbursement of approved expenditure for the period to which the milestone relates and we may terminate this agreement in accordance with clause 15, without further liability or penalty except that we shall reimburse you for all approved expenditure incurred up to (but not including) the date of termination.
7 Reports, Information and Inspection
(a) You shall be responsible for producing the Report set out in clause 4, which shall be submitted in electronic form and must follow guidelines for producing the document as supplied by us and be satisfactory to us.
(b) We reserve the right to withhold all or part of any payment until receipt by us of the relevant report mentioned above, produced to a standard satisfactory to us within 3 months of the Completion date or any date agreed between us. Failure to produce the Report by such time, where we consider you to be partly or solely responsible for this failure, or the production of the Report unsatisfactory to us, will constitute a material breach of these terms and conditions and the terms of clause 15(a) shall apply.
(c) Where reasonably required by us you shall supply to us or any third parties such information or other assistance relating to the Project as you reasonably can. We shall have the right, acting reasonably, and after having given reasonable notice to you in writing, to enter your premises to inspect and take copies of books, records or other documents relating to the Project.
8 Monitoring Meetings and Review
(a) A representative of the Project, appointed by you shall meet with us once a year to assess the progress of the Project. Failure, without reasonable excuse, to attend a meeting shall be considered a material breach of this agreement and the provisions of clause 15(a) shall apply.
(b) Without prejudice to clause 8(a) we may request a reasonable number of additional meetings with you and your Collaborators (if any) during the Project to discuss the progress of the Project and you shall attend such meetings, at a mutually agreed time.
(c) We shall, having regard for your interests in maintaining your confidential information and protecting your intellectual property rights, have the right to invite other people to attend meetings.
(d) We may agree to a written request from you to change any milestone, but shall be under no obligation to accept any change.
(e) If by the Review Date (if a Review Date is specified in the Offer) we consider that the Project is not, despite the attainment of any milestones, giving value or is no longer relevant, we may terminate the contract with you on giving ninety days notice. Subject to the terms of clause 5(a), and subject to agreement between the parties on a case by case basis we shall: (i) reimburse costs and expenses reasonably incurred by you in connection with work reasonably undertaken for the purpose of terminating the Project from the date of notice until the completion of the notice period; (ii) compensate you for any financial commitments you have entered into (acting reasonably) on the basis that the Project would run its full course.
9 Equipment
You shall be responsible for providing all general laboratory equipment and other facilities required to complete the Project unless otherwise agreed in writing with us.
10 Staff
All persons employed by you on the Project shall be your responsibility as employer. You shall indemnify us for any loss we suffer arising out of your relationship with any person employed by you in relation to the Project, including, without limitation, any claim arising under the Patents Act 1977, except where this arises directly or indirectly as a result of any breach of contract, breach of statutory duty and/or negligence on the part of us.
11 Indemnity
(a) Either party shall be liable to the other party for direct losses suffered by the other party arising out of this contract where such losses are directly attributable to a breach of contract, breach of statutory duty or to any negligence of that party, its officers or employees or otherwise.
(b) Either party's liability under clause 11(a) shall, in aggregate, in respect of any claim, or series of connected claims arising out of the same cause in any calendar year, not exceed £100,000 or 125 per cent of the cumulative total of the contract price (whichever is greater). Each party is responsible for obtaining, if they consider it appropriate, insurance cover at their own cost for any loss exceeding this limit of £100,000 or 125 per cent of the cumulative total of the contract price (whichever is greater).
(c) Neither party shall be liable to the other party for any loss or damage arising out of this contract or caused by any breach of contract, breach of statutory duty or any negligence of that party, to the extent that such loss or damage is indirect, consequential or special, whether or not that party has been advised of the possibility of such loss or damage.
(d) Neither party shall be liable to the other party for any loss or damage arising out of the services to be provided under this contract to the extent that such loss or damage is:
(i) a loss of profits;
(ii) a loss of data; or
(iii) any loss other than as set out in clauses 11(a) or 11(c);
whether or not that party has been advised of the possibility of such loss or damage. For the avoidance of doubt, the provisions of clauses 11(d)(i), 11(d)(ii) and 11(d)(iii) shall each be construed as a separate exclusion of liability.
(e) Nothing in this contract or this clause 11 shall limit either party's liability for dishonesty, deceit or fraudulent misrepresentation, death or personal injury.
12 Publication
(a) You shall comply with our guidelines on publicity for research projects and provide us with a copy of any document to be published for approval prior to its publication.
(b) You shall ensure that all forms of publication shall include a statement in a form approved by us stating that the Project was supported by funds supplied by us and shall comply with clause 14.
(c) In any forms of publication released by us relating to the Project we shall identify the involvement of you.
(d) Any approval to be given by us under this clause 12 shall not be unreasonably withheld or delayed.
13 Third Parties
(a) You agree not to enter, without our prior written consent, into any agreement or arrangement with a third party (other than as set out in the Application) in relation to the subject matter of the Project during the term.
(b) A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This does not affect any right of a third party which exists other than pursuant to that Act.
14 Intellectual Property
(a) Subject to clauses 14(d), (e) and (g), all intellectual property rights (including, without limitation, trade marks, copyright, database rights, design rights, semiconductor chip topography rights, patents, rights to apply for patents, registered designs and design rights in any jurisdiction) in the results of the Project ("Results") and all work conducted by you or third parties in the course of and pursuant to the Project ("Work") shall vest in us.
(b) Without prejudice to clauses 14(d) and (e), you agree to do all things and execute all documents at our reasonable expense as we may reasonably request to give effect to clause 14(a).
(c) You warrant that, so far as you are aware, the use and exploitation of the Results and the Work by us shall not infringe third party intellectual property rights except to the extent that you have informed us of such rights.
(d) To the extent that the use and exploitation of the Results and the Work by us requires licences from third parties (other than from you, if any) in respect of rights of which you are aware, you shall use all reasonable efforts to procure the necessary licences for us (and such other parties as we may reasonably direct) from third parties on terms as we may reasonably require. We shall reimburse you for any reasonable out-of-pocket expenses incurred in procuring such licences provided that a reasonable effort has been made to identify the need for and cost of any such licences in the Application.
(e) Where the Results and/or the Work cannot be fully exploited without infringing property owned or controlled by you or any contributor, you shall grant or use your reasonable endeavours to procure for us (and such other party as we may reasonably direct) a licence on commercially reasonable terms to use such intellectual property to the extent required by us to exploit the Results and the Work. Any failure to agree terms shall be referred to an appropriate expert, agreed by the parties, for resolution.
(f) Where we are the sole provider of funding for the Project, or the only provider of funding interested in exploiting the Results and/or the Work, we shall discuss with you the appropriate method for exploitation of the intellectual property in the Results and/or Work prior to the end of the Project taking into account the interests of HGCA levy-payers who provide funding to HGCA and whether any licences as contemplated in clauses 14(d) and 14(e) are required.
(g) Where clause 14(f) does not apply (including, but not limited to, when the Project is LINK-funded), we may enter into an agreement concerning the ownership, exploitation and management of the intellectual property rights in the Results and the Work with one or more third parties at any time before or during the Project.
15 Termination and Recovery
(a) In the event of a material breach by you of these terms and conditions (and which has not been remedied by you within fourteen days written notice requiring you to do so) we may (without prejudice to any other legal rights we may have to damages or otherwise) forthwith, by notice in writing to you take any one or more of the following actions without further penalty or liability to you or any third party:-
(i) withhold payment on such terms and conditions as we may reasonably determine;
(ii) terminate this contract, or
(iii) recover from you at our discretion the whole or part of payments already made under the contract. If we seek to recover payments already made, we shall be entitled to recover only such amount as is reasonable in all the circumstances to recover.
(b) In the event that an order is made by the Agricultural Ministers for the dissolution of the HGCA, we shall have no further obligations to make payments under the contract except as these may be provided for in such an order. This does not affect our obligation to pay you for work you have performed or costs you have incurred at the date of such an order.
(c) HGCA may terminate this agreement forthwith by sending a written notice to you if in relation to you, a petition is presented for the making of an administration order under part II of the Insolvency Act 1986 (the "IA"), or you become the subject of any act or other proceedings under the IA, an encumbrancer takes possession or an administrative receiver or receiver is appointed of the whole or any part of your undertaking or property, an order is made by the Court for your winding-up or a resolution is passed by your shareholders for your winding-up, you cease to pay your debts or become unable to pay your debts within the meaning of section 123 of the IA, anything analogous to any of the events referred to in this clause 15(c) (other than for bona fide purposes of solvent reconstruction or amalgamation) under the law of any jurisdiction occurs in relation to you.
(d) This agreement may be terminated by us immediately by notice given at any time to you if the person or group of connected persons (as defined in section 839 of ICTA) now having control (as defined in section 840 of ICTA) of you shall cease to have such control.
(e) Upon the termination of this agreement:
(i) you shall forthwith return to us the originals and any copies of all documents and materials provided to you by us in relation to the Project provided that you will be entitled to keep a file copy of all such informtation;
(ii) we shall be entitled upon giving reasonable notice to enter your or other premises and recover any equipment, documents and materials which are our property;
(iii) notwithstanding any other provisions of this agreement, the terms of this clause 15, all definitions, and clauses 11, 16 and 17 shall continue in force in accordance with their terms.
16 Force Majeure
Neither you nor us shall be liable for any delay in performing our obligations hereunder if such delay is caused by circumstances beyond our reasonable control provided however that any delay by any of your sub-contractors shall not relieve you from liability for delay except where such delay is beyond the reasonable control of the sub-contractor or collaborator concerned. In such circumstances the party so delaying shall promptly notify the other in writing of the reasons for the delay (and the likely duration of the delay), and the performance of that party's obligations shall be suspended during the period that the said circumstances persist and an extension of time for performance equal to the period of the delay shall be granted.
16.1 Either you or us may, if such delay continues for more than 12 continuous weeks, terminate this agreement forthwith on giving notice in writing to the other in which event neither you nor us shall be liable to the other by reason of such termination; and
16.2 you and we shall in any event use reasonable efforts to mitigate the impact of any event of force majeure and to recommence performance of their obligations under this agreement as soon as reasonably possible.
17 Waiver
No delay or neglect in enforcing any term or condition of this agreement shall be or be deemed to be a waiver, or otherwise prejudice any right that either of us has under this agreement.
18 Severability
If any part of this agreement is found by any Court or other competent authority to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of this agreement, which shall continue to be valid and enforceable to the fullest extent permitted by law.
19 Entire Agreement
This agreement and the documents referred in it (including the Application, Offer and the statement of costs) constitute our entire agreement relating to the Project and supersede all prior oral or written proposals, understandings or communications (other than fraudulent misrepresentation).
In entering into this agreement you and we each acknowledge that you and we do not do so on the basis of and do not rely on any representation, warranty or other provision except as expressly provided in this agreement.
20 Notices
Any notice required to be given under this agreement shall be in writing and sent by first class post or facsimile transmission to the address of the party set out in the Offer, or any other address notified from time to time in writing.
Any notice shall be deemed to have been served if sent by first class post, two business days after the date of posting as if sent by facsimile transmission, two hours after the time of despatch if despatched before 3:00pm on a business day, or in any other case at 10:00am on the next business day after the date of despatch.
21 Disputes
Any dispute (other than a dispute relating to clause 14 or any breach of confidentiality) arising hereunder shall at the instance of either party be submitted to arbitration by a single arbitrator to be agreed between the parties or (in default of such agreement within 28 days of the date of request for arbitration) to be appointed by the President of the Law Society. The decision of the arbitrator shall be binding on you and us.
22 Governing Law
These terms and conditions and the Offer shall be governed by English law and the parties to them hereby submit to the jurisdiction of the English courts.
HGCA
CALEDONIA HOUSE 223 PENTONVILLE ROAD
LONDON N1 9HY
Telephone : 020 7520 3945
Facsimile : 020 7520 3992
e-mail : research@hgca.com
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