Research Agreement (“Agreement”) is between THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, a body corporate and politic organized and existing under the laws of the State of Illinois, doing business on its Urbana-Champaign campus through the Office of Sponsored Programs and Research Administration, 1901 South First Street, Suite A, Champaign IL 61820-7406 (“UNIVERSITY”), and , organized and existing under the laws of with its principal offices at (“SPONSOR”). The parties may be referred to individually as “Party” and collectively as the “Parties”.
The Parties contemplate that the research to be performed under this Agreement will be of mutual interest and benefit; and
UNIVERSITY has determined that the research will further the instructional, research, public service or economic development objectives of UNIVERSITY consistent with its status as a public institution of higher education.
NOW, THEREFORE, the Parties agree:
1.0. The Research
1.1. Statement of Work. UNIVERSITY will use reasonable efforts to perform the research project titled and more fully described in the statement of work attached to this Agreement as Exhibit A (“Research”).
1.2. Reports. UNIVERSITY will furnish to SPONSOR written progress reports of the Research in such detail that SPONSOR reasonably requests according to the following schedule:
1.3. Principal Investigator. The Principal Investigator who will direct the Research for UNIVERSITY is . If the Principal Investigator becomes unable to perform this Agreement for any reason, UNIVERSITY may appoint a successor Principal Investigator with SPONSOR’s written approval. Either Party may terminate this Agreement in accordance with Section 3.5 if the Parties cannot agree on an acceptable successor within a reasonable time.
1.4. Performance Period. UNIVERSITY will perform the Research during the period through (“Performance Period”). The Parties may extend the Performance Period by written amendment.
1.5. Equipment/Supplies. Title to all equipment and property purchased by UNIVERSITY under this Agreement will be in and remain with UNIVERSITY even after completion or termination of the Agreement.
2.0. Research Costs
2.1. Budget. SPONSOR will pay to UNIVERSITY the direct and the facilities and administration (“F&A”) costs (collectively “Research Costs”) described in Exhibit B (“Budget”) that UNIVERSITY incurs in performing the Research. The F&A cost rate set forth in the Budget will remain in effect during the Performance Period. SPONSOR is not liable for costs other than the Research Costs described in the Budget, and UNIVERSITY is obligated to perform only the Research funded by SPONSOR.
2.2. Payment Schedule. SPONSOR will pay to UNIVERSITY the Research Costs in U.S. dollars as follows:
☐ This is a cost-reimbursement agreement. No more frequently than monthly, UNIVERSITY will submit invoices to SPONSOR evidencing the actual Research Costs incurred by UNIVERSITY in performing the Research. SPONSOR will pay the full amount due within 30 days from its receipt of an invoice.
☐ This is a fixed-price agreement. Within 30 days of the Effective Date, SPONSOR will pay UNIVERSITY $ and thereafter as follows: for total compensation of $.
2.3. Remittance. SPONSOR will pay UNIVERSITY through one of the following two payment options:
(a) By check made payable to the "University of Illinois" and mailed to:
University of Illinois at Urbana-Champaign
Grants & Contracts
P.O. Box 4610
Springfield, IL 62708-4610
U.S.A.
(b) By Automated Clearinghouse (“ACH”) sent to UNIVERSITY’s bank account:
Financial Institution JP Morgan Chase Bank, N.A.
Address East Old State Capitol Plaza
P.O. Box 19266
Springfield, IL 62794-9266 USA
Nine-Digit Routing Transit Number 071000013
Depositor Account Title The Board of Trustees of the University of Illinois, EDI Receipts and Federal Depository
Depositor Account Number 616002911
Type of Account Checking
3.0. Effective Date and Termination
3.1. Effective Date. This Agreement is effective on the date signed by the last of the Parties to sign this Agreement, or otherwise on (“Effective Date”).
3.2. Expiration. This Agreement will expire on the end date of the Performance Period, unless sooner terminated in accordance with this Section 3.
3.3. Termination for Convenience. Either Party may terminate this Agreement for convenience by providing 60 days’ advance written notice to the other Party.
3.4. Termination For Breach. Upon material breach, the aggrieved Party may terminate this Agreement provided that the breaching Party fails to cure the breach within 30 days after receipt of written notice. This remedy is in addition to any other remedies available at law.
3.5. Immediate Termination. Either Party may terminate this Agreement effective immediately upon notice to the other if: (a) the Parties cannot agree on an acceptable successor Principal Investigator; (b) SPONSOR has been declared insolvent, ceases (or threatens to cease) to carry on its business; or an administrator or receiver has been appointed over all or part of its assets; (c) SPONSOR’s failure to pay promptly; or (d) either Party is debarred or excluded from participating in any government program.
3.6. Effect of Termination. If SPONSOR terminates this Agreement for convenience, SPONSOR will pay for all Research Costs incurred through the date of termination, including all non-cancelable obligations, even though the obligations may extend beyond the termination date. For any other termination, SPONSOR will pay UNIVERSITY for all Research Costs incurred through the termination date. Termination will not affect the Parties’ rights and obligations accrued prior to termination.
Confidential Information
4.1. Confidentiality Obligation. Each Party will advise its employees to use reasonable efforts to hold in confidence all proprietary information received from the other Party in connection with the Research (“Confidential Information”); provided, however, that each Party may share Confidential Information with third parties to the extent necessary to perform the Research under terms consistent with this Agreement. For written disclosures, the Party disclosing Confidential Information will mark the information “Confidential” at the time of disclosure. For oral or visual disclosures, the Party disclosing Confidential Information will designate the information “Confidential” at the time of disclosure and confirm such designation in writing to the other Party no later than 30 days after disclosure. Except as provided in Section 6.2, each Party’s obligation of confidentiality shall extend for three years from disclosure and shall not apply to information that: (a) was in recipient's possession on a non-confidential basis prior to receipt from disclosing Party; (b) is in the public domain or is general or public knowledge prior to disclosure, or after disclosure, enters the public domain or becomes general or public knowledge through no fault of recipient; (c) is properly obtained by recipient from a third party not under a confidentiality obligation to disclosing Party; (d) is explicitly approved for release by written authorization of disclosing Party; (e) is or has been developed by recipient independent of recipient’s access to disclosing Party’s Confidential Information; or (f) is required by law or court order to be disclosed.
4.2. Response to Information Requests. If UNIVERSITY receives a request under the Illinois or U.S. Freedom of Information Acts or a request by legal process to disclose Confidential Information, UNIVERSITY will use reasonable efforts to provide prompt notice to SPONSOR and will reasonably cooperate with SPONSOR to protect any SPONSOR Confidential Information.
5.0. Publication/Public Presentations
5.1. Review Period. UNIVERSITY researchers may publish or publicly disclose non-confidential Research results without SPONSOR interference after providing SPONSOR a 30-day period for review and comment. Upon written notice by SPONSOR that the proposed publication contains SPONSOR Confidential Information or enabling disclosures of Inventions (as defined below). UNIVERSITY will either revise the publication to eliminate such disclosures, or will delay publication for a limited period in its discretion to allow for preparation and filing of U.S. patent applications. The Parties will cooperate so that student theses or dissertations are not adversely affected by any delay.
5.2. Copies of Publications. UNIVERSITY will furnish SPONSOR with a copy of any publications resulting from the Research.
5.3. Acknowledgment. Each Party will acknowledge the contributions of the other Party in publications or public presentations as scientifically appropriate.
6.0. Intellectual Property
6.1. Inventions. “Inventions” means those potentially patentable discoveries, including pending patent applications and issued patents, first conceived and actually reduced to practice in performance of the Research. UNIVERSITY shall own all Inventions first conceived and actually reduced to practice solely by UNIVERSITY employees or solely by SPONSOR employees through significant use of UNIVERSITY resources (“UNIVERSITY Inventions”). SPONSOR shall own all Inventions otherwise first conceived and actually reduced to practice solely by SPONSOR employees (“SPONSOR Inventions”). The Parties shall jointly own all Inventions first conceived and actually reduced to practice by both UNIVERSITY and SPONSOR employees (“Joint Inventions”).
6.2. Confidentiality of Invention Disclosures. UNIVERSITY will promptly notify SPONSOR of any Invention disclosure received by its Office of Technology Management (“OTM”). SPONSOR shall treat all UNIVERSITY Invention disclosures as Confidential Information. Notwithstanding Section 4.1, SPONSOR’s obligation of confidentiality for Invention disclosures shall continue until the Confidential Information becomes publicly available through no fault of SPONSOR. Each Party will promptly notify the other of any Joint Inventions.
Patents
6.3.1. Patent Filing. UNIVERSITY may, at its discretion and at its expense, file patent applications in the United States and in foreign countries for any UNIVERSITY or Joint Invention. UNIVERSITY also will, at SPONSOR’s request and expense, file patent applications in the United States for UNIVERSITY or Joint Inventions. SPONSOR will make any such request to UNIVERSITY in writing and within 60 days of UNIVERSITY’s notice of Invention disclosure. UNIVERSITY will keep SPONSOR promptly informed regarding the status of any patent application filed at SPONSOR’s expense and will give SPONSOR reasonable opportunity to comment.
6.3.2. Foreign Filing Election. SPONSOR will notify UNIVERSITY of any foreign countries in which SPONSOR desires a license at least 60 days prior to the respective foreign filing due date.
6.3.3. Costs. If SPONSOR requests UNIVERSITY to file a patent application or if SPONSOR elects to license UNIVERSITY Inventions, SPONSOR will pay UNIVERSITY, within 30 days of invoice date, all documented costs to secure and maintain the patents.
6.4. Licensing. For any patent application on a UNIVERSITY Invention or Joint Invention, UNIVERSITY grants to SPONSOR (a) a non-exclusive, non-transferable, royalty-free license to practice the Invention for non-commercial purposes; and (b) the option to negotiate a royalty-bearing commercial license in a designated field of use and territory, which SPONSOR may elect by written notice to UNIVERSITY no later than six months after UNIVERSITY’s notice of Invention disclosure.
6.5. Background Intellectual Property. Nothing in this Agreement grants to either Party any rights or interest in the other Party’s Background Intellectual Property. “Background Intellectual Property” means (a) all works of authorship created outside the scope of this Agreement and (b) potentially patentable discoveries, including pending patent applications and issued patents, conceived or first reduced to practice outside the scope of this Agreement.
6.6. CREATE Act. This Agreement ☐ is ☐ is not a “joint research agreement” under the Cooperative Research and Technology Enhancement Act of 2004, 35 U.S.C. § 103(c)(3). A Party may invoke the CREATE Act to overcome a prior art rejection only with respect to a joint Invention and only with the prior written consent of the other Party.
6.7 Copyrights
6.7.1. Ownership. Title to all original works of authorship created in performance of the Research and in which copyright may be claimed (“Copyrightable Works”) shall vest initially in the author, subject to the policies of the Party that employs the author. Any joint work, as that term is defined by the U.S. Copyright Act of 1976, 17 U.S.C. § 101, as amended, shall be jointly owned, but co-owners shall have no duty of accounting for any profits.
6.7.2. Internal Use License. UNIVERSITY grants to SPONSOR a non-exclusive, royalty-free license to use, reproduce, prepare derivative works, display, distribute and perform all UNIVERSITY-owned Copyrightable Works other than computer software and its documentation and informational databases for SPONSOR’s internal research purposes, provided that SPONSOR shall not have the right to distribute copies or derivative works to third parties. For UNIVERSITY-owned Copyrightable Works that are identified as a deliverable under the Statement of Work and in the nature of computer software (and its documentation) or informational databases, UNIVERSITY grants to SPONSOR for SPONSOR’s internal research purposes a royalty-free, non-transferable, non-exclusive license to use, reproduce, prepare derivative works, display and perform such Copyrightable Works.
7.0. Tangible Research Property. “Tangible Research Property” (“TRP”) means those tangible (corporeal) items, as distinguished from intangible (intellectual) property, produced in performance of the Research. For purposes of illustration, TRP may include items such as: biological materials, computer media, drawings and diagrams, integrated circuit chips, prototype devices, and equipment. UNIVERSITY shall hold title to all TRP produced by UNIVERSITY with UNIVERSITY resources; provided, however, that title to TRP identified as a deliverable under the statement of work will vest in SPONSOR upon delivery by UNIVERSITY.
8.0. Disclaimer of Warranties. UNIVERSITY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS PERFORMANCE UNDER THIS AGREEMENT. UNIVERSITY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, USE OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS WITH REGARD TO DATA, INVENTIONS, COPYRIGHTABLE WORKS, TRP, OR OTHER RESEARCH RESULTS PROVIDED BY UNIVERSITY.
9.0. Limitation of/Release from Liability
9.1. Limitation of Liability. UNIVERSITY SHALL NOT BE LIABLE TO SPONSOR FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR OTHER DAMAGES (INCLUDING LOST REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC LOSS OR DAMAGE) HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY (WHETHER FOR BREACH OR IN TORT, INCLUDING NEGLIGENCE) ARISING FROM, RELATED TO, OR CONNECTED WITH SPONSOR’S USE OF DATA, INVENTIONS, COPYRIGHTABLE WORKS, TRP, OR ANY OTHER RESEARCH RESULTS PROVIDED BY UNIVERSITY, EVEN IF UNIVERSITY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.2. Release from Liability. SPONSOR releases UNIVERSITY and its Trustees, officers, employees, and agents from all liability, and shall be responsible, for any and all costs, damages, and expenses, including attorney fees, arising from any claims, damages, and liabilities asserted by third parties in connection with or arising from SPONSOR’s use of data, Inventions, Copyrightable Works, TRP, or any other Research results provided by UNIVERSITY.
10.0. General Provisions
10.1. Fiscal Management. UNIVERSITY will maintain complete and accurate accounting records in accordance with accepted accounting practices for institutions of higher education. UNIVERSITY will make the accounting records available for inspection and audit by SPONSOR or its authorized agent, at reasonable times upon reasonable notice at SPONSOR’s expense for three years following the end of UNIVERSITY's fiscal year (July 1 - June 30) in which Research Costs are incurred.
10.2. Use of Names. Neither Party will use the name of the other in any form of advertising or publicity without the express written permission of the other Party. SPONSOR shall seek permission from UNIVERSITY by submitting the proposed use, well in advance of any deadline, to the Associate Chancellor for Public Affairs, University of Illinois, Third Floor Swanlund Administration Building, 601 East John Street, Champaign, IL 61820; fax (217) 244-7124.
10.3. Relationship of the Parties. Neither Party is agent, employee, legal representative, partner or joint venturer of the other. Neither Party has the power or right to bind or commit the other.
10.4. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois, U.S.A., without reference to its conflict of law provisions.
10.5. Third Party Beneficiaries. This Agreement does not create any rights, or rights of enforcement, in third parties.
10.6. Severability. If a court of competent jurisdiction finds any provision of this Agreement legally invalid or unenforceable, such finding will not affect the validity or enforceability of any other provision of this Agreement and the Parties will continue to perform. If the Agreement cannot be performed in the absence of the provision, this Agreement will terminate upon 30 days’ written notice by one Party to the other Party.
10.7. Merger. This Agreement and all attachments embody the entire understanding of the Parties and will supersede all previous or contemporaneous communications, either verbal or written, between the Parties relating to this Agreement. All terms and conditions of any instruments, including purchase orders, issued by SPONSOR to facilitate payment under this Agreement are void, even though they may be issued after the signing of this Agreement.
10.8. Amendments. No modification to this Agreement will be effective unless confirmed in a written amendment signed by each Party’s authorized representative.
10.9. Counterparts. The Parties may sign this Agreement in one or more counterparts, each of which constitutes an original and all of which together constitute the Agreement.
10.10. Assignments. This Agreement shall bind, and inure to the benefit of, the Parties and any successors to substantially the entire assets of the respective Party. Neither Party may assign this Agreement without first obtaining the prior written consent of the other Party, and any attempted assignment is void.
10.11. Force Majeure. Each Party will be excused from performance of the Agreement only to the extent that performance is prevented by conditions beyond the reasonable control of the affected Party. The Party claiming excuse for delayed performance will promptly notify the other Party and will resume its performance as soon as performance is possible.
10.12. Export Control. Each Party acknowledges that performance of all obligations under this Agreement is contingent on compliance with applicable United States laws and regulations controlling the export of technical data, computer software, laboratory prototypes and other commodities. The transfer of certain technical data and commodities may require a license from the cognizant agency of the United States government and/or written assurances by SPONSOR that SPONSOR will not re-export data or commodities to certain foreign countries or nationals thereof without prior approval of the cognizant government agency.
10.13. Resolution of Disputes. The Parties will enter into good faith negotiations to resolve any disputes arising from this Agreement. Resolution will be confirmed by written amendment to this Agreement. If the Parties cannot resolve any dispute amicably through negotiation, either Party may terminate this Agreement in accordance with Article 3.0.
10.14. Survival. All terms of this Agreement that are intended to survive termination or expiration in order to be effective shall survive such termination or expiration.
10.15. Notices. Any notice given under this Agreement will be in writing and will be effective upon receipt evidenced by: (a) personal delivery; (b) confirmed facsimile transmission; (c) return receipt of postage prepaid registered or certified mail; or (d) delivery confirmation by commercial overnight carrier. All communications will be sent to the addresses set forth below or to such other address designated by a Party by written notice to the other Party in accordance with this section:
UNIVERSITY: For matters related to the Sponsored Research Agreement:
University of Illinois
Director, Office of Sponsored Programs & Research Administration
1901 South First Street
Champaign, IL 61820-7406
Telephone: (217) 333-2187
Fax: (217) 239-6830
UNIVERSITY: For matters related to intellectual property and licensing:
University of Illinois
Director, Office of Technology Management
319 Ceramics Building
105 South Goodwin Avenue
Urbana, IL 61801
Telephone: (217) 333-7862
Fax: (217) 265-5530
SPONSOR:
Telephone:
Fax:
10.16. Authorized Signatories. Each Party represents that the individuals signing this Agreement on its behalf are authorized, and intend, to bind the organization in contract.
THE BOARD OF TRUSTEES OF
THE UNIVERSITY OF ILLINOIS SPONSOR
Walter K. Knorr, Comptroller Signature
Date
Name and Title of Authorized Signatory
ATTEST: Date
Michele M. Thompson, Secretary
UNDERSTOOD AND AGREED:
Principal Investigator
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