SUB CONTRACT AGREEMENT - Subject to Contract / contract denied
BETWEEN
National University of Ireland, Galway with an address at University Road, Galway, Ireland (“NUIG”) XYZW, with an address at XYZW, (the “Subcontractor”)
AND
represented by their authorised signatories and hereinafter referred to as the “Parties” to this Agreement is made this XYZW, 2006.
WHEREAS
(i)
The University has been granted assistance by numerous research grant awards including, without limitation, grants from XYZW towards the cost of carrying out basic research programme entitled XYZW hereinafter collectively referred to as "The Programme;"
(ii)
As part of the Programme, the University wishes to commission the Subcontractor to carry out various projects, consultancy, lobbying and other activities, otherwise known as “The Duties" detailed in Annex 1, in order to enhance the worldwide recognition and worldwide reputation of XYZW and its associated research projects and intellectual property in XYZW;
(iii)
The Subcontractor holds all necessary skills, expertise and qualifications to provide the services and perform the Duties contemplated by this Agreement and wishes to act in this capacity;
NOW THEREFORE, the Parties agree, for fair and reasonable consideration, the receipt and adequacy of which is hereby acknowledged, as follows:
1.
APPOINTMENT
1.1. The University hereby appoints the Subcontractor to perform the Duties detailed in the schedule attached hereto at Annex 1, as may be amended from time to time, for the Term of this Agreement, and the Subcontractor accepts such appointment, subject to the terms and conditions hereinafter contained.
2. 2.1
TERM This Agreement will commence on XYZW and continue in full force and effect for a period of twelve (12) months terminating on XYZW (the “Term”), subject to the performance of the Duties in
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accordance with the schedule set out herein at Annex 1 and unless or until earlier terminated by either party pursuant to clause 7.
3. 3.1.
PERFORMANCE OF DUTIES The Subcontractor undertakes and agrees to perform the Duties in accordance with the terms of this Agreement and in particular the Subcontractor will at all times during the continuance in force of this Agreement perform the Duties with all reasonable care and skill and will act at all times in good faith toward the University and the University’s interests in the Programme (and each of the projects).
4. 4.1
FEES AND PAYMENT SCHEDULE In consideration of the provision of the services and performance of the Duties in respect of each projects under the Programme, the University will pay the Subcontractor the sum of € XYZW plus Value Added Tax (VAT) @ 21% totalling € XYZW (the “Fees”) plus expenses as set out below. Payment will be made in arrears in monthly instalments of € XYZW inclusive of VAT @ 21% plus expenses, in line with NUIG expense policies and subject to scheduled completion of Project deliverables within 30 days of receipt of invoice.
4.2
4.3 4.4
Payment will be inclusive of VAT if applicable. The Subcontractor shall be responsible for the payment of all personal income taxes, social insurance and other levies or related charges arising from or in connection with the Fees received by the Subcontractor under this Agreement.
4.5
Any revision of these payment arrangements can only take place with the agreement of both Parties in writing.
5. 5.1
INTELLECTUAL PROPERTY Definition: Intellectual Property shall mean the results, including all information (whether or not it can be protected) developed during or as a result, whether directly or indirectly, of the work programs within each project under the Programme and the performance of the Duties under this Agreement, as well as all copyrights, software listings or code, program listings, object code, source program listings, source code, engineering methods and processes, methodologies, trade secrets, trade marks, trade names, domain names, patents, discoveries, concepts, inventions, designs, drawings, technical know-how or other proprietary rights pertaining to such results regardless of whether or not applications for, or the issue of, patents or similar forms of protection have been filed by or issued to the University.
5.2
Each Party agrees to notify the other Party in writing of any relevant or related background technology, pre-existing know-how or other intellectual property rights subsisting in and owned by that Party prior to submission to the respective project under the Programme and prior to the performance of any of the
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Duties. All rights to such background technology, pre-existing know-how and other intellectual property rights so notified to the other Party in accordance with this clause 5.2. shall remain vested in the disclosing Party. Except as expressly permitted herein, any disclosure, publication, licensing, dissemination, commercialisation or other use of either Party’s Background Technology or other intellectual property rights, in whole or in part, by the other Party or a third party shall be subject in each case to a separate agreement. 5.3 Subject to clause 5.2, all rights, title, interest and share in any Intellectual Property of whatever form howsoever arising from the undertaking of any or all of the Duties shall be vested exclusively in the University and the University shall be entitled, in its absolute discretion, to file in its own name applications for registration of such Intellectual Property and to licence, assign, transfer, disseminate, commercialise and use such Intellectual Property, or any part of it, in any way it sees fit. A schedule of the Intellectual Property will be updated on a regular basis. 5.4 The Subcontractor shall have no rights in respect of any of the Intellectual Property and the Subcontractor hereby acknowledges that, except as may be provided herein, it shall in no event whatsoever acquire any rights in respect thereof or in respect of any additional goodwill which may be generated in respect of any use of the Intellectual Property and that all such rights and goodwill are, and shall always remain, vested solely in the University. 5.4 Prior to commencement of the respective project under the Programme and the undertaking of the Duties outlined herein, the Subcontractor will execute the University Intellectual Property assignment form assigning all such Intellectual Property arising from the undertaking of the Duties to the University. 5.6 The Subcontractor further agrees to execute all applications, assignments or other instruments as may be reasonably requested by the University from time to time in order for the University to establish ownership of the Intellectual Property and to obtain, maintain and enforce whatever protection of this Intellectual Property as the University, at its discretion and expense, shall deem appropriate.
6. 6.1
CONFIDENTIAL INFORMATION Definition: Disclosing Party shall mean a Party disclosing information. Receiving Party shall mean a Party receiving disclosed information.
6.2
The Parties recognise that it may be necessary to share Confidential Information in connection with this Agreement. The Disclosing Party may disclose to the Receiving Party certain Confidential Information of the Disclosing Party and all such Confidential Information shall be clearly marked Confidential Information by the Disclosing Party.
6.3
For the Term of this Agreement and for a period of three (3) years thereafter, the Receiving Party will treat such Confidential Information as confidential and proprietary to the Disclosing Party and will not use or disclose such Confidential Information except (i) to the extent reasonably necessary to perform
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the obligations contemplated by and in accordance with this Agreement and (ii) solely for the purposes for which it is provided by the Disclosing Party. 6.4 Without limiting the generality of the foregoing, the Receiving Party will keep the Confidential Information in a safe and secure place with access restricted to employees and contractors of the Receiving Party who have a need to know for purposes of performing its obligations under this Agreement and will take the same precautions, that the Receiving Party uses to protect its own confidential or proprietary information, to prevent any unauthorised use or disclosure of such Confidential Information. 6.5 The obligations under this clause 6 will not apply to any Confidential Information that the Receiving Party can conclusively prove is; 6.5.1 to be used or disclosed pursuant to fulfilment of the Receiving Party's obligations under this Agreement, 6.5.2 6.5.3 or later becomes part of the public domain through no fault of the Receiving Party, obtained by the Receiving Party from a third party (other than in connection with this Agreement) who was not under any obligation of secrecy or confidentiality with respect to such information, 6.5.4 independently developed by the Receiving Party (e.g., without reference to any Confidential Information), 6.5.5 required by applicable law to be disclosed (e.g., pursuant to applicable securities laws or legal process), provided that the Receiving Party will use reasonable efforts to give advance notice to and co-operate with the Disclosing Party in connection with any such disclosure, 6.5.6 consented to be disclosed by the Disclosing Party.
7. 7.1.
TERMINATION Either Party shall be entitled to terminate this Agreement forthwith in the event the other Party commits any material breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to substantially remedy the same within thirty (30) days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; in the case of a material breach, the termination will be immediately effective upon receipt of written notice.
7.2.
The University shall be further entitled to terminate this Agreement by giving thirty (30) days written notice to the Subcontractor in the event the Subcontractor at any time (i) challenges the validity of any Intellectual Property of the University or (ii) knowingly contravenes the provisions of clause 5 or 6.
7.3
This Agreement may be terminated at any time by either of the Parties giving the other three (3) months written notice of its intention to terminate.
8.
INDEMNIFICATION
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8.1. Each party shall indemnify, defend, and hold harmless the other party from and against any and all losses (including reasonable costs and expenses) resulting from any third party claim that arises out of or is attributable to the negligence, fault or wilful act(s) or omission(s) of the indemnifying party or strict liability in tort (including any claim alleging the infringement of third party intellectual property rights). IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
INDIRECT, CONSEQUENTIAL, INCIDENTIAL OR SPECIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The exclusions and limitations set out in this clause 8 shall apply to the fullest extent permissible at law but neither party excludes or limits liability for death or personal injury caused by its negligence, fraud or wilful deceit or that of its employees or agents and for which it is responsible.
9. 9.1.
RELATIONSHIP At all times during this Agreement the Parties are independent contractors and neither Party shall be construed as a partner, joint venture, agent or employee of the other. It is understood that the Subcontractor, being an independent contractor, shall be responsible for the calculation and payment of all applicable personal income taxes, social welfare contributions, national insurance and, subject to clause 4.4, any other taxes or levies required by law to be paid by the Subcontractor and no responsibility whatsoever shall lie with the University in this regard.
10.
ENTIRE AGREEMENT
10.1 This Agreement contains the entire agreement between the Parties and it supersedes all other agreements in respect of the subject matter hereof. This Agreement, or any part of it, may not be modified except by an instrument in writing signed on behalf of both Parties. Neither Party shall be entitled to assign its rights, obligations and liabilities under this Agreement, whether in whole or in part, without the prior written consent of the other Party.
11. 11.1.
COUNTERPARTS This Agreement may be entered into in any number of counterparts, all of which when taken together shall constitute one and the same instrument. Either party may enter into this Agreement by signing any such counterpart. Either party may execute this Agreement by facsimile transmission with the same force and effect as if it were executed and delivered in writing.
12. 12.1
NO GENERAL WAIVER Failure or neglect by either Party to enforce at any time any of the provisions hereof shall not be construed or deemed to be a waiver of that Party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice that Party’s rights to take subsequent action.
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13.
SEVERABILITY
13.1 All the terms and provisions of this Agreement are distinct and severable, and if any term or provision is held unenforceable, illegal or void in whole or in part by any court, regulatory authority or other competent authority it shall to that extent be deemed not to form part of this Agreement, and the enforceability, legality and validity of the remainder of this Agreement will not be affected, provided that, in any case where as a result of the operation of this clause the rights or obligations of a party are materially altered to the detriment of that party, that party may terminate this Agreement within thirty (30) days from the date of the relevant decision of the relevant Court, regulatory authority or other competent authority.
14.
NOTICES
14.1 Any notice to be served under this Agreement will be in writing and sent either under hand, e-mail, facsimile or by international courier mail, to the last known address of the recipient recited in this Agreement or any subsequent address notified to the other party in writing. Notices will be deemed to have been received three (3) working days after dispatch if sent by international courier mail (or on actual receipt, if earlier) or on actual delivery if delivered by hand. Any notice sent by e-mail or facsimile shall be deemed to be received at the time of transmission.
15.
PROPER LAW AND ARBITRATION
15.1. This Agreement and the rights and obligations of the Parties hereunder shall be governed by and construed in accordance with the laws of Ireland. 15.2 In case any dispute or difference shall arise between the Parties to this Agreement then either of the Parties may give notice in writing of such dispute or difference to the other and such dispute or difference shall be and is hereby referred to arbitration and to final decision of an arbitrator to be appointed by agreement between the Parties or in default of such agreement to be appointed by the President for the time being of the Incorporated Law Society of Ireland. The award of such arbitrator shall be final and binding on both Parties and he shall determine by whom and to whom the costs of the dispute shall be paid.
The University authorises the Subcontractor to commence the Duties forthwith subject to the terms and conditions stated of this Agreement.
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IN WITNESS HEREOF this Agreement is executed and delivered by the Parties on the date first written.
(1)
Signed
.................................................................................................…. (The “University”). Dr Daniel O’Mahony
Name
Position Director, Technology Transfer Date
In the presence of:
(2)
Signed
..................................................................................................
(The “Subcontractor”)
Name Position Date
XYZW,
In the presence of:
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Annex 1
The activity I propose to work on during this time is as follows:
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