AHDB-HGCA
CALEDONIA HOUSE 223 PENTONVILLE ROAD
LONDON N1 9HY
Telephone : 020 7520 3945
Facsimile : 020 7520 3992
e-mail : research@hgca.com
AHDB-HGCA
TERMS AND CONDITIONS FOR
RESEARCH AND DEVELOPMENT CONTRACTS (Collaborators)
These are the terms and conditions for Collaborators and shall be referred to as
"Terms and Conditions for Research and Development Contracts (Collaborators)
(June 2008 Edition)"
Please click on Terms and Conditions for Collaborators  to download a copy in Microsoft Word(93kb)
Following your application, you have received a letter of offer from us (AHDB-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. The Offer, together with these terms and conditions and any other document specifically referred to in the Offer or I nthese terms and conditions constitute the agreement between us (the "Agreement").
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 as a Collaborator:
(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 assist the applicant (the "Applicant") and 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 research and development project (the "Project");
(c) you will carry out the Project and act at all times in compliance with all relevant laws, guidelines and codes of practice including, without limitation, in accordance with all relevant research governance principles.
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 your collaboration on the Project and including, without limitation, as follows:
- you shall employ a scientific contact who shall be responsible for producing the project management report ("Project Management Report") and contributing to the interim progress report ("Annual Project Report") and final report ("Final Report") prepared by the applicant ("Applicant");
- 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 in respect of this Agreement 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. You shall remain responsible for the payment of any taxes or governmental charges arising in relation to such payments.
(b) Before beginning the Project, you shall provide us with a breakdown of expected expenditure for each year of the Project. The breakdown should incorporate the following heads: staff costs, salaries, national insurance, superannuation, total staff costs, travel, consumables, other costs, overheads, total funds requested from us and total cost 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) Minor adjustments of expenditure between headings in the breakdown of approved expenditure are allowed within the total of approved expenditure for any year. Under this sub-clause "minor" means less than 10% of the total approved expenditure for that year. Any other adjustments between headings in the breakdown of approved expenditure or the carrying forward of savings must be submitted to us for approval prior to 1 February 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 and agreed in the Offer.
Other than as stated in these terms, we shall have no liability, financial or otherwise, for any expenditure or liability arising from the Project.
6 Claims
(a) Claims for payment for the approved expenditure and Capital Equipment Expenditure for the calendar quarters ending on 30th June, 30th September, 31st December and 31st March, shall be submitted to us by you unless we agree otherwise. We shall provide you with forms on which you should make any claim for reimbursement of expenditure. These claims should normally be received by us within one month of the end of the calendar quarter. The final claim must be submitted to us within three months of the Completion Date unless we agree otherwise. We shall make payment to you within 1 month of receiving a claim subject to clause 7(d). Where possible, documentary evidence should be included when claiming reimbursement of expenditure and should be grouped under the heads of expenditure contained in the Offer. Any claims for reimbursement of Capital Equipment Expenditure should be separately identified in the claim for reimbursement.
(b) We may make payment to the Applicant on your behalf and where we do this, the Applicant shall comply with instructions from us in relation to such payment to you. The Applicant holds such sums as trustee for you.
(c) 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 14, 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 assist the Applicant to submit an Annual Project Report to us by 31st December of each year during the Project unless specified otherwise in the Offer, which, taking account of your interests and those of the Applicant regarding confidentiality and protection of intellectual property at our sole discretion, we may publish. You hereby grant us a perpetual, irrevocable licence to publish each Annual Project Report and confirm publication shall not breach any obligation of confidentiality. You shall submit a Project Management Report to us by 31 December of each year during the Project which we shall not publish. If the Project has commenced shortly before 31 December we may agree between us that these reports shall not be provided in the first year of the Project.
(b) You shall assist the Applicant to provide a Final Report to us at the end of the Project and we may, taking account of your interests and those of the Applicant regarding confidentiality and protection of intellectual property at our sole discretion, publish this report on the internet or otherwise and you hereby grant us a perpetual, irrevocable licence to publish in this manner without liability to you or the Applicant or any other contributor.
(c) The Annual Project Report, the Project Management Report and the Final Report shall contain such information required by the guidelines and templates provided by us or such other information which we require you to include and shall be submitted in electronic form.
(d) 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. We will deem any of the following actions to be a material breach of these terms and conditions and the terms of clause 15(a) shall apply where:
(i) the Annual Project Report or the Project Management Report is not received by us within one month of the due date;
(ii) the Final Report is not received by us within three months of the
Completion Date or any other date agreed by us (if any).
(e) We reserve the right to send any Annual Project Report or Final Report to a third party for assessment, subject to requiring appropriate obligations of confidentiality from such third party.
(f) Where reasonably required by us you shall supply to us or any third parties such information or other assistance relating to the Project. 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 as you reasonably can.
8 Monitoring Meetings and Review
(a) A representative of the Project, appointed by you in consultation with the Applicant, 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 the Applicant 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 non-cancellable costs and expenses reasonably and properly 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. Any such reimbursement or compensation shall be conditional upon you complying with a duty to seek to mitigate such costs as far as is reasonably possible eg by reutilising staff, materials and services on other current or forthcoming applications or projects.
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 ("Claims") provided that:.
(i) the party seeking indemnification has adhered to and complied with its obligations under this Agreement and all applicable laws and regulations;
(ii) the indemnifying party is promptly notified of any Claim pursuant to clause 11(a); and
(iii) the party seeking indemnification co-operates fully with the indemnifying party including as required pursuant to clause 11(b);
the indemnifying party's indemnity obligations under this clause 11 shall not apply to any Claim to the extent arising from any negligent acts or omissions, fraud or deceit or wilful misconduct on the part of the indemnified party, its affiliated entities, officers, directors and employees.
(b) In the event of a party seeking indemnification under this Clause 11 it shall, as a condition thereto, notify the indemnifying party within twenty (20) days after the receipt of notice of the Claim. The indemnifying party shall have the right to select defence counsel and to direct the defence or settlement of, any Claim. Under no circumstances shall the indemnified party settle or otherwise compromise any Claim without the indemnifying party's prior written consent.
(c) 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).
(d) 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.
(e) 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(d);
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(e)(i), 11(e)(ii) and 11(e)(iii) shall each be construed as a separate exclusion of liability.
(f) 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 and the Applicant.
(d) Any approval to be given by us under this clause 12 shall not be unreasonably withheld or delayed.
(e) In accepting these terms and conditions you are agreeing to make available, subject to the provision of a set fee to cover your time, data arising from the project at any time during a period not exceeding 7 years after the publication of the final report.
13 Data management
(a) All data records must be of a sufficient quality to present a complete picture of the work, enabling it to be repeated if necessary.
(b) The lead scientist must ensure the validity of the work by carrying out regular reviews of the records with each scientist working on the project.
(c) Documentation relating to data management procedures must be provided to us along with the contract (unless previously agreed on an institute basis) and the Agreement will be subject to the receipt of acceptable documentation.
(d) The location of all project records, including critical data, and archiving procedures employed, must be recorded and a full copy supplied to us along with the Final Report. Project records must be retained in a form that ensures their integrity and security, and prevents unauthorised modification, for a minimum of seven years.
(e) We reserve the right to audit institutes and/or Projects at any time to ensure that data management procedures are adequate and being adhered to.
14 Data Protection
(a) To the extent either party is a "Data Controller" (as defined under the Data Protection Act 1988 (the "Act")), each party shall comply with the provisions of the Act (including any related and/or subsequent legislation enacted after the date of this Agreement) in relation to any "Personal Data" (as defined under the Act) obtained or otherwise processed in accordance with this Agreement.
(b) To the extent that either party acts as a "Data Processor" (as defined under the Act) of the other under this Agreement, the Data Processor shall (to the extent that it is aware that it is a Data Processor only). process the Personal Data as instructed in writing by the other party; and put in place the appropriate technical and organisational measures in the circumstances to ensure the security of the Personal Data is maintained.
15 Freedom of Information
(a) You acknowledge that we are subject to the requirements of the Code of Practice on Government Information, the Freedom of Information Act 2000 ("FOIA") and the Environmental Information Regulations and shall assist and cooperate with us to enable us to comply with its Information disclosure obligations.
(b) You agree to:
(i) transfer to us all requests for information under FOIA or the Environmental Information Regulations that you receive as soon as practicable and in any event within two (2) working days of receiving a request for information;
(ii) provide us with a copy of all information in your possession or power in the form that we require within ten (10) working days (or such other period as we may specify) of our request; and
(iii) provide all necessary assistance as reasonably requested by us to enable us to respond to the request for information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the Environmental Information Regulations.
(c) You acknowledge that we may, acting in accordance with the Department of Constitutional Affairs Code of Practice on the Discharge of the Functions of Public Authorities under Part I of FOIA, be obliged to disclose information without consulting or obtaining consent from you.
(d) You shall ensure that all Information is retained for disclosure for three (3) years following the termination of this Agreement and shall permit us to inspect such records as requested from time to time.
16 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.
17 Intellectual Property
(a) Subject to clauses 17(d), (e) and (g), all work conducted by you or the Applicant or third parties in the course of and pursuant to the Project ("Work") and all intellectual property rights (including, without limitation, trade marks, copyright, database rights, registered designs, design rights, semiconductor chip topography rights, inventions, know-how, patents orapplications for any of the foregoing, in any jurisdiction) in the results of the Project or arising from any Work ("Results") shall vest in us.
(b) Without prejudice to clauses 17(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 17(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 and the Applicant) 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 background intellectual property owned or controlled by you or the Applicant or other 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 background 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 AHDB-HGCA levy-payers who provide funding to AHDB-HGCA and whether any licences as contemplated in clauses 17(d) and 17(e) are required.
(g) Where clause 17(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.
18 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 or instruct the Applicant to 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 Department for Environment, Food and Rural Affairs for the dissolution of AHDB-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) We 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 18(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 information;
(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 18, all definitions, and clauses 11, 13, 14, 15, 19 and 20 shall continue in force in accordance with their terms.
19 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 the Applicant or 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.
i) 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
ii) 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 obligations under this Agreement as soon as reasonably possible.
20 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.
21 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.
22 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.
23 Notices
Any notice required to be given under this agreement shall be in writing and sent by first class post or fax 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 fax 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.
24 Disputes
Any dispute (other than a dispute relating to clause 17 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.
25 Assignment
You shall not assign, transfer, dispose of or subcontract this Agreement or any part of it without our prior written consent.
26 Governing Law
This Agreement shall be governed by English law and the parties to them hereby submit to the jurisdiction of the English courts.
2 July 2008
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