Collaboration Agreement 2009doc - Universiteit Stellenbosch by monkey6


Collaboration Agreement 2009doc - Universiteit Stellenbosch

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									                                             COLLABORATION AGREEMENT
                                               STELLENBOSCH UNIVERSITY (“SU”)
Physical Address                                    Admin. Building B, Victoria Street, Stellenbosch, 7600, South Africa
Postal Address                                      Private Bag X1, Matieland, Stellenbosch, 7602, South Africa
Telefax Number                                      +27 (0)21 808 4537
Telephone Number                                    +27 (0)21 808 3546
Contact Person                                      Mrs C Malherbe
Email Address                             
who warrants that s/he is duly authorised to sign

Physical Address
Postal Address
Telefax Number
Telephone Number
Contact Person
Email Address
who warrants that s/he is duly authorised to sign

The Parties agree to be bound by this cover sheet and by the attached terms and conditions which is
incorporated in this Cover Sheet by this reference. The Parties acknowledge that they have read and understand
the attached terms and conditions.
Project title:                                                     Project Leader:
Effective date:                                                    Contract Period (Duration):
Contract Value:                                                    Contract number:
       A. The Parties are desirous of collaborating with a view to furthering education, applied scientific and
          technological research, capacity building and community involvement in the two organisations;
       B. The Parties recognise the mutually beneficial interdependencies of a partnership established to render a
          service, to educate and train students, and to undertake research, and commit themselves to the
          continuation and strengthening of this partnership;
       C. The Parties wish to combine their respective expertise and resources to establish an association of
          excellence and, as a joint effort, to make available accredited and professional training and development
          programmes, research and consultation capacity and related activities.
       D. This general Agreement between the Parties is intended to lead to specific Work Orders between
          organisations on a Project-by-Project basis, and in the prescribed manner as annexed hereto (the
now therefore the parties wish to record in writing the agreement they have concluded:

1.1.      In this Agreement, unless inconsistent with or otherwise indicated by the context –
1.2.      “Agreement” means the agreement contained in this document and any written amendments made
          thereto from time to time;
1.3.      “Background Intellectual Property” means intellectual property relating to the Project, owned by either of
          the PARTIES prior to the Effective Date or any other intellectual property which may subsequently be
          developed by any of the Parties unrelated to the Project and which may be beneficially incorporated in
          the Project, with the prior written consent of the other Party.
1.4.      “Intellectual Property” means intellectual capital in the form of any and all technical or commercial
          information, including, but not limited to the following: chemical structures; biological or chemical
          information (including, but not limited to organisms, cells, DNA sequences, germ plasm and other
          biological materials); manufacturing techniques and designs; specifications and formulae; software,
          computer programmes, know-how; data; products; systems and processes; production methods; trade
          secrets; undisclosed inventions; marketing and financial information; as well as registered and
          unregistered intellectual property rights in the form of patents, trade marks, designs and plant breeder's
          rights (whether granted/registered or applied for); and copyright in any works, including but not limited to,
          literary works and computer programmes.
1.5.      “the Parties” mean the Collaborator (hereinafter the “Collaborator”) and Stellenbosch University
          (hereinafter “SU”);
1.6.      “the Project” means: [].
1.7.      “Full Cost” means the full economic cost of undertaking research and development as determined in
          accordance with generally acceptable accounting practices, and includes all applicable direct and indirect
          cost as may be prescribed. (Clause 15(4)(b) of the IPR Act 51 of 2008)

SU Collaboration Agreement                           Confidential                                      Page 2 of 10
1.8.    “NIPMO” means the National Intellectual Property Management Office, a function managed within the
        Department of Science and Technology or any of its instruments or entities, as established in terms of the
        IPR Act.
1.9.    Where any term is defined within the context of any particular clause in this agreement, the term so
        defined, unless it is clear from the clause in question that the term so defined has limited application to
        the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this agreement,
        notwithstanding that the term has not been defined in this interpretation clause.
1.10.   Work means any commercial work described in a detailed work plan as specified in the Schedule “A”
        template and attached hereto as annexure as and when required.
1.11.   Any reference to writing shall include any modes of reproducing any words in a legible and non-transitory
        form, including e-mail that shall be deemed to have been received on the date of e-mail confirmation by
        the other party in person.
1.12.   The terms of this agreement having been negotiated, the contra proferentem rule shall not be applied in
        the interpretation of this agreement.
1.13.   “IPR Act” means the Intellectual Property Rights from Publicly Financed Research and Development Act,
        Act 51 of 2008.
        This Agreement between the Parties is intended to lead to specific Work Orders between the Parties on a
        Project-by-Project basis, and in the prescribed manner as annexed hereto (Schedule A).
3.      DURATION (contract period)
        This agreement will commence on the effective date and endure for the Contract Period as defined on
        page 1 and/or in Schedule A of this Agreement, subject to provisions that provide for its earlier termination,
        and provided further that the clauses relating to ownership of intellectual property, confidentiality and
        arbitration will survive any termination of this Agreement.
        The Parties shall jointly:
4.1.    Improve mechanisms for collaborative training and development programmes, research and consultation
        capacity and related activities;
4.2.    Develop a system that would enable students to participate in training and development programmes,
        research and consultation capacity and related activities.
4.3.    Develop a system that would enable the associated staff and students of the parties to work within each
        other’s Institutions on a continuing or intermittent basis;
4.4.    Work jointly and in partnership to identify fields of research that could further the interests of the Parties,
        as well as the broader community in order to meet the aims and objectives of this Agreement. This will
        include the identification of research agendas and the obtaining of funding;
4.5.    Create mechanisms for sharing resources, data and environmental assessment information, integrated
        geographic information systems, etc.         Maintain joint support on specific resource applications of
        information management systems;
4.6.    Jointly foster support for national programmes and international obligations;

SU Collaboration Agreement                          Confidential                                      Page 3 of 10
4.7.    Work jointly and in partnership to investigate the feasibility of presenting the publication of papers or
        conference proceedings.
4.8.    The Parties shall commence the performance of the work promptly after the effective date of this
        agreement, and shall complete such work substantially in accordance with the terms and conditions of
        this Agreement.
4.9.    The parties shall do all acts and sign all documents as may be required from time to time in order to
        implement and carry out the terms and conditions of this agreement.
4.10.   The parties shall immediately disclose to one another in writing all new information in their possession or
        under their care relating to the work, provided that such new information must have been developed
        during the course of the work relating to this agreement.
4.11.   If necessary, during the term of this Agreement, representatives of SU will meet with representatives of
        the Collaborator at times and places mutually agreed upon to discuss the progress and results, as well as
        ongoing plans, or changes therein, of the work to be performed.
4.12.   RESPONSIBILITIES OF collaborator
        4.12.1. Co-author on outputs (presentations, publications)
        4.12.2. Reporting to SU
        4.13.1. Co-author on outputs (presentations, publications)
        4.13.2. Reporting to Collaborator
4.14.   In the event of non-compliance with the terms and conditions of this agreement, the agreement can be
        terminated in accordance with the termination and arbitration clauses.
5.1.    It is recorded that there shall be no consideration payable by either party for the performance of the
        Project referred to in clause 4.
5.2.    Notwithstanding clause 5.1, and only in the event where the parties so agree in writing, a consideration
        for the performance of the work referred to in Schedule "A", the Collaborator shall pay SU the amount
        specified in the payment schedule set out in Schedule "A" hereto, in respect of each component of the
        work, on or before the date specified in the payment schedule and upon receipt of an invoice issued by
        SU in respect of such component.
6.      SUPPORT
6.1.    The parties undertake at all times to do all such things, to perform all such acts and to take all such steps
        and to procure the doing of all such things, the performance of all such actions and the taking of all such
        steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of
        the terms, conditions and import of this agreement and furthermore to act in good faith towards each
        other and to co-operate with each other to the fullest extent.
6.2.    The parties recognise that it is impracticable to provide for every contingency which may arise during the
        period of this agreement, and shall use their best endeavours to agree upon means of alleviating any
        hardship or detriment which may be caused to the parties by circumstances at present unforeseen.
7.      AGENCY

SU Collaboration Agreement                        Confidential                                       Page 4 of 10
7.1.    No party shall present itself as the representative or agent of the other party for any purpose nor shall it
        have the power of authority to commit the other party to any obligation, unless it receives the other party’s
        prior written consent.
7.2.    Nothing in this agreement shall be interpreted as establishing a partnership or joint venture between the
        Nothing contained in this agreement shall be construed as binding the parties to any form of exclusivity.
        Both parties shall be entitled to conduct business independent of each other and to pursue any work on its
        own where market requirements so dictate, unless otherwise agreed upon in writing and signed by the duly
        authorised representatives of the parties. No party shall use the name of the other party in conjunction with
        its own or in connection with any work otherwise than with the prior written consent of the other party.
        The Collaborator will not use the name of SU, nor of any member of SU’s staff, in any publicity,
        advertising or news release without the prior written approval of an authorised representative of SU. SU
        will not use the name of the Collaborator, nor any employee of the Collaborator, in any publicity without
        the prior written approval of the Collaborator.
10.1.   The Collaborator recognises that under the academic policies of SU, the results of research work must be
        publishable and agrees that researchers engaged in the Project shall be permitted to present at
        symposia, national or regional professional meetings and to publish in journals, theses or dissertations, or
        other methods of reporting of their own choice, methods and results of research work.
10.2.   SU may publish or allow the publication of research results or data, on whatever medium, concerning
        Intellectual Property it jointly owns provided that this does not affect the protection of that Intellectual
        Property in terms of clause 12. The Collaborator shall be given 30 days prior written notice of any
        planned publication. If, before the end of this period, Collaborator so request, a copy of this research
        results or data shall be communicated to Collaborator within 30 days after receipt of such request. The
        Collaborator may object to the publication within 30 days after receipt of the research results or data
        envisaged to be published, if Collaborator considers that the protection of Intellectual Property would be
        adversely affected by this publication. The planned publication shall be suspended until the end of this
        consultation period. In the absence of any objection within the above-mentioned period, it is deemed that
        the Collaborator agrees.
11.1.   Each Party must treat and hold as confidential all Confidential Information which they may receive from
        the other Party or which becomes known to them during the term of this Agreement.
11.2.   The receiving Party agrees that in order to protect the proprietary interests of the disclosing Party in the
        disclosing Party’s Confidential Information, unless the disclosing Party has expressly agreed otherwise in
        writing, the Receiving Party will not and will ensure that its personnel does not at any time, whether
        during this Agreement or thereafter, use or disclose to any third party any Confidential Information of the
        disclosing Party other than as allowed in terms hereof.
11.3.   Exceptions. The aforegoing obligations shall not apply to any information which –

SU Collaboration Agreement                         Confidential                                        Page 5 of 10
        11.3.1. is lawfully in the public domain at the time of disclosure or subsequently and lawfully becomes
                part of the public domain by publication or otherwise;
        11.3.2. is already lawfully known to the Receiving Party prior to the time of disclosure;
        11.3.3. is independently developed by the receiving Party, trivial or obvious;
        11.3.4. subsequently becomes available to the receiving Party from a source other than the disclosing
                Party, which source is lawfully entitled without any restriction on disclosure to disclose such
                information; or
        11.3.5. is disclosed pursuant to a requirement or request by operation of Law.
12.1.   Background IP
        All rights in and to background intellectual property shall vest in and remain the sole property of the Party
        or person who created same.
        12.1.1. The Parties undertake to grant each other, where possible, a non-exclusive transferable license
                in respect of all background intellectual property that shall be required for commercial exploitation
                of the Project Intellectual Property.
12.2.   Project IP Ownership
        All rights in and to the Intellectual Property resulting directly from, or developed in the course of the
        Project, shall vest jointly in the Parties.       Joint ownership of Project Intellectual Property shall be
        established in accordance with inventorship.
12.3.   Research License for Intellectual Property
        The Parties shall retain an irrevocable, non-exclusive royalty-free non-transferable right to use the
        Intellectual Property for research and teaching purposes only.
        Should any provision of this agreement in any manner whatsoever contravene any law of the Republic of
        South Africa, such provision shall be deemed to be severable and shall not affect any other provisions
        which are not in contravention of any law.
14.     CESSION
        Neither party shall be entitled without the prior written consent of the other party to cede, delegate, or
        otherwise transfer any of its rights or obligations in terms of this agreement which consent shall not be
        withheld unreasonably.
        This agreement is governed by the laws of and is subject to the jurisdiction of the Republic of South
        Africa, as constituted from time to time.
16.1.   The parties choose as their domicilia citandi et executandi (“Domicilium”) for all purposes under this
        Agreement the physical addresses set out on the cover sheet of this Agreement.
16.2.   Any notice given in terms of this agreement shall be in writing and shall –
        16.2.1. if delivered by hand be deemed to have been duly received by the addressee on the date of

SU Collaboration Agreement                           Confidential                                    Page 6 of 10
        16.2.2. if posted by prepaid registered post be deemed to have been received by the addressee on the
                8 (eighth) day following the date of such posting;
        16.2.3. if transmitted by facsimile be deemed to have been received by the addressee on the day
                following the date of dispatch, unless the contrary is proved.
        16.2.4. if sent by e-mail deemed to have been received on the date of e-mail confirmation by the other
                party in person.
16.3.   Notwithstanding anything to the contrary contained or implied in this agreement, a written notice or
        communication actually received by one of the parties from another including by way of facsimile
        transmission shall be adequate written notice or communication to such party.
17.1.   In the event, subject to clause 18 of this agreement, of any of the parties ("the defaulting party")
        committing a material breach of any of the terms of this agreement and failing to remedy such breach
        within a period of 10 (ten) days after receipt of a written notice from the other party ("the aggrieved party")
        calling upon the defaulting party so to remedy, then the aggrieved party shall be entitled, at its sole
        discretion and without prejudice to any of its other rights in law, either to claim specific performance of the
        terms of this agreement or to cancel this agreement forthwith and without further notice, claim and
        recover damages from the defaulting party.
17.2.   SU may terminate the agreement summarily in the event of one or more of its key personnel (which for
        the purpose hereof means any researcher involved in the work, without whom the work at the sole
        discretion of SU cannot be continued):
        17.2.1. being expelled by SU for any reason; or
        17.2.2. leaving the employment of SU or terminating his/her academic relationship with SU for
                whatsoever reason; or
        17.2.3. dying or becoming incapacitated.
17.3.   This Agreement may be terminated by a Party if the other Party takes steps to place itself or is placed in
        liquidation, whether voluntarily or compulsory, or in judicial management, in either case whether
        provisionally or finally, or takes steps to deregister itself or is deregistered.
18.1.   Should any dispute (other than a dispute in respect of which urgent relief may be obtained from a court of
        competent jurisdiction) arise between the parties in the widest sense in connection with –
        18.1.1. the formation or existence of;
        18.1.2. the carrying into effect of;
        18.1.3. the interpretation or application of the provisions of;
        18.1.4. the parties' respective rights and obligations in terms of or arising out of;
        18.1.5. the validity, enforceability, rectification, termination or cancellation, whether in whole or in part of;
        18.1.6. any documents furnished by the parties pursuant to the provisions of, this agreement or which
                relates in any way to any matter affecting the interests of the parties in terms of this agreement,
                that dispute shall, unless resolved amongst the parties to the dispute, be referred to and be
                determined by arbitration in terms of this clause, provided that a party to the dispute has
                demanded the arbitration by written notice to the other parties.

SU Collaboration Agreement                           Confidential                                        Page 7 of 10
18.2.   The arbitration shall be held at Stellenbosch;
        18.2.1. with only the representatives and legal representatives of the parties to the dispute present threat;
        18.2.2. otherwise in terms of the Arbitration Act, No 42 of 1965, it being the intention that the arbitration
                shall be held and completed within 21 (twenty one) days after it was demanded.
18.3.   The arbitrator shall be, if the matter in dispute is principally –
        18.3.1. a legal matter, a practising advocate or attorney of at least 15 (fifteen) years' standing;
        18.3.2. an accounting matter, a practising chartered accountant of at least 15 (fifteen) years' standing;
        18.3.3. any other matter, any independent person, agreed upon between the parties to the dispute.
18.4.   Should the parties to the dispute fail to agree whether the dispute is principally a legal, accounting or
        other matter within 7 (seven) days after the arbitration was demanded, the matter shall be deemed to be
        a legal matter.
18.5.   Should the parties to the dispute fail to agree on an arbitrator within 7 (seven) days after the expiry of the
        period referred to in clause 18.4, the arbitrator shall be appointed at the request of any party to the
        dispute by the President for the time being of the Cape of Good Hope Law Society.
18.6.   The decision of the arbitrator shall be final and binding on the parties to the dispute and may be made an
        order of any competent court at the instance of any of the parties to the dispute.
18.7.   The parties hereby consent to the jurisdiction of the High Court of South Africa (Cape Provincial Division)
        in respect of any proceedings arising out of this agreement, as stipulated in clause 18.1 and which is not
        subject to arbitration in terms of this clause.
18.8.   The provisions of this clause –
        18.8.1. constitute an irrevocable consent by the parties to any proceedings in terms hereof and no party
                shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by
                such provisions;
        18.8.2. are severable from the rest of this agreement and shall remain in effect despite the termination of
                or invalidity for any reason of this agreement.
        This agreement constitutes the whole agreement between the parties as to the subject matter hereof and
        no agreements, representations or warranties between the parties other than those set out herein are
        binding on the parties.
        No addition to or variation, consensual cancellation or novation of this agreement and no waiver of any
        right arising from this agreement or its breach or termination shall be of any force or effect unless reduced
        to writing and signed by all the parties or their duly authorised representatives.
        No latitude, extension of time or other indulgence which may be given or allowed by any party to the other
        parties in respect of the performance of any obligation hereunder or the enforcement of any right arising
        from this agreement and no single or partial exercise of any right by any party shall under any
        circumstances be construed to be an implied consent by such party or operate as a waiver or a novation
        of, or otherwise affect any of that party's rights in terms of or arising from this agreement or estop such

SU Collaboration Agreement                           Confidential                                      Page 8 of 10
        party from enforcing, at any time and without notice, strict and punctual compliance with each and every
        provision or term hereof.
22.1.   Neither party shall be liable to the other Party for any loss or damage caused by or arising from any act or
        omision in terms of or pursuant to this Agreement, except to the extent specifically provided for in clauses
        22.2 to 22.4 below.
22.2.   The liability of one Party to the other Party in terms of this Agreement or in terms of the common law or
        any indemnity relating to this Agreement, for
        22.2.1. any direct or indirect or consequential damages, whether at any time within the contemplation of
                the parties or not, and
        22.2.2. any loss of income or profit, howsoever arising, shall be limited to the aggregate of the price or
                remuneration or value of any consideration paid by the Party suffering the loss to the other Party
                in terms of this Agreement.
22.3.   One Party shall not be liable to the other Party for any loss suffered if such loss is caused by or arises
        from acts or omissions of the Party suffering the loss, rendering the other Party unable to perform its
        duties in terms of this Agreement.
22.4.   The provisions of clauses 22.1 to 22.3 above are also stipulated for the benefit of the employees, agents
        or contractors of the parties to this Agreement.


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                                                                                                                                 SCHEDULE A
                                                               THE PROJECT1
                                                           (PROPOSAL / QUOTATION)

    DESCRIBE Services, Work, project approach, planning, facilities etc.

The Services or Work Product will be considered complete when the following criteria are substantially met:

    Deliverables                                                              Completion Criteria

3               SCHEDULE
The estimated schedule for delivery of the Services or Work Product are as described below:

    Deliverables                                  Start Date                                        Complete Date

    Completion Date

4               FEES AND PAYMENT

    Deliverable / payment date                                                                      Fees

                                                                                                    Subtotal:       R
    Total Fees:                                                                                     VAT:            R
                                                                                                    Total           R

  It is compulsory to complete clauses 1-4. These clauses may, however, be replaced with a separate document that is to be annexed to this Agreement and
which shall at least contain the information required above.
  Unless the Start Date and Completion Date have been defined, this Agreement shall commence on the signature date and shall continue to be in force and
effect until completion of the Services or Work Product and payment has been received in full, at which time the Agreement will automatically terminate.
  Payment is due within 30 day from invoice where after interest will be levied on all outstanding amounts.

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