RESEARCH AND COLLABORATION AGREEMENT
This Research and Collaboration Agreement (the "Agreement"), effective as of December 15th, 2006 (the "Effective Date"), is entered into by and between the State of São Paulo Research Foundation (hereinafter "FAPESP"), a [public agency of the State of São Paolo, Brazil] having its principal office at Rua Pio XI, 1500, CEP 05468-901, São Paulo, SP, Brazil, and Microsoft Corporation (hereinafter "Microsoft"), a corporation organized and existing under the laws of the State of Washington, USA, having its principal office at One Microsoft Way, Redmond, Washington 98052, USA, hereinafter collectively referred to as the "parties".
WHEREAS, the External Research & Programs group of Microsoft Research and FAPESP desire to collaborate to create a collaborative research program, to be instituted as the "Microsoft Research-FAPESP Institute for IT Research", for the purpose of increasing research capacity in the Brazilian State of São Paulo;
WHEREAS, Microsoft is interested in creating long-term collaborative ties and a sustained relationship with researchers in the Brazilian state of São Paulo, as well as between these researchers and their Latin-American counterparts;
WHEREAS, one objective of the research program is to support high-quality fundamental research in information and communication technologies that is geared towards addressing social and economic development needs of the region;
WHEREAS, the parties intend that the Research Projects will serve to both advance the quest for fundamental understanding and for its applications;
WHEREAS, the Parties believe it is advantageous to increase collaboration in advanced research endeavors between academic Principal Investigators in the Brazilian state São Paulo and researchers in other parts of Latin America;
WHEREAS, the parties desire that the Research Projects result in: published scientific papers, the creation of new intellectual property, the incubation of new small businesses, the involvement of higher education students in the Research Projects, and the generation of new funding by obtaining matching research funds from other agencies; and
WHEREAS, Microsoft and FAPESP desire to enter into an agreement under which the parties select and fund research projects, all pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the adequacy of which the parties hereby acknowledge, the parties agree as follows:
1.1 "Collaborating Research Institution" means a research institution that is selected to receive funding to perform a Research Project as provided in Section 2.2 below.
1.2 "Joint Steering Committee" (or "JSC") means the six-member committee appointed by the parties in accordance with Section 2.1 below.
1.3 "Principal Investigator" means the person from each respective Collaborating Research Institution who is designated in a Research Proposal or other written notice to Microsoft and FAPESP as having the primary responsibility for supervising, managing, and overseeing a given Research Project on behalf of the Collaborating Research Institution.
1.4 "Research Funding" means that portion of a Project Budget that is identified in an approved Research Proposal as research funding to be provided by Microsoft and FAPESP.
1.5 "Research Project" means a research project that is documented in a Research Proposal and has been approved by the JSC to be funded and implemented under this Agreement.
1.6 "Research Proposal" or "Proposal" means a written proposal submitted to the JSC for a Research Project in response to a request for proposals, as described in Section 2.2 below.
2 GENERAL GOVERNANCE
2.1 Joint Steering Committee. The parties will form a six-member Joint Steering Committee composed of three members appointed by each respective party. The JSC will have oversight responsibility for the overall strategic relationship between the parties and the Collaborating Research Institutions in accordance with this Agreement. The JSC will meet periodically to discuss research directions that may be of interest and benefit to the parties, review Research Proposals as provided hereunder, review ongoing Research Projects, define and approve changes in research direction and activities as may be appropriate, manage any differences that may arise between the parties, and make other decisions related to Research Projects under this Agreement. Meetings of the JSC may be by whatever means that the Parties may agree upon (e.g., face-to-face, telephone conference, and/or video conference). Either party may replace one or more of its JSC members at any time by providing written notice to the other party. Any information received by FAPESP regarding the selected proposals, including reports, cancellations and other correspondence, must be shared timely with the JSC
2.2 Requests for Proposals; Research Proposals; Approval and Implementation.
(a) Requests for Proposals. The JSC will work together to create requests for proposals ("RFPs") for research projects, and will publish such RFPs either to the general public or to a select group of research universities, as agreed by Microsoft and FAPESP.
(b) Research Proposals. Each RFP and its corresponding Research Proposal should focus on the objective of supporting high-quality fundamental research in information and communication technologies that are geared toward addressing the social and economic development needs of the region.
(c) Content of Proposals. The parties will require that each Proposal submitted in response to an RFP be in a standard format (to be decided by the parties), and contain certain basic information, including at least the following: (a) a detailed description of the proposed Research Project; (b) the amount of Research Funding requested; (c) a detailed budget for the proposed Research Project; (d) the identity and background of the Principal Investigator for the proposed Research Project, and the identity of other project participants; and (e) a proposed schedule for the performance of the proposed Research Project (including the proposed duration of the project).
(d) Review and Selection of Winning Proposals. The JSC will discuss the various proposals submitted in response to RFPs, and will choose the winning proposals to be funded. Both parties must agree on which proposals are to be funded. The JSC may invite third-party experts to be part of an advisory board to evaluate and comment upon proposals, or to act as ad-hoc reviewers, but all decisions regarding the selection of winning proposals will be made solely by the JSC.
(e) Modifications. If FAPESP, Microsoft, or a Collaborating Research Institution wish to make a change to a Research Project, that party will submit a written request to the JSC along with an amended Research Proposal. The JSC will review, discuss, and promptly decide upon such requests and notify the Principal Investigator of the relevant Collaborating Research Institution of its decision of whether to agree to the change or not.
2.3 Workshops. The JSC will organize, plan, and execute one workshop each year. The content and agenda of the workshops will be focused on technical subjects related to the research pursuits of the supported Research Projects. The members of the JSC may delegate these duties to their agents and contractors, and the workshop will be funded from the combined FAPESP and Microsoft funding described in Section 3 below, as directed by the JSC. The workshop attendees will consist of the various Principal Investigators and their teams, and other interested faculty members (regardless of their geographic affiliations).
2.4 Collaborating Research Institution Agreement. FAPESP will require each Collaborating Research Institution, as a condition of receiving funding under this Agreement, to enter into a Collaborating Research Institution Agreement between FAPESP and the Collaborating Research Institution (attached hereto as Exhibit A) covering such issues as the handling of the funding for the Research Project, progress reports, conduct of the project, and intellectual property. Microsoft will be an intended third-party beneficiary of these Collaborating Research Institution Agreements.
2.5 Publicity. The parties will consult with each other before making public announcements or press releases about this Agreement or the status of Research Projects, and will coordinate such announcements or press releases.
3 RESEARCH FUNDING
3.1 Microsoft's Contribution. Microsoft will contribute a total of US$400,000.00 (four hundred thousand US dollars) over the full Term of the Agreement toward Research Projects duly approved by the JSC in accordance with this Agreement. In the first year of the Term, Microsoft will contribute US$250,000.00 (two hundred fifty thousand US dollars) of this total funding amount toward approved Research Projects.
3.2 FAPESP's Contribution. FAPESP will contribute the equivalent of US$250,000.00 (two hundred fifty thousand US dollars) in matching funds to researchers in São Paulo toward approved Research Projects in the first year, and will match, dollar for dollar, additional amounts that Microsoft provides in the succeeding two years of the agreement.
3.3 Management of Funding. Microsoft will transfer to FAPESP Microsoft's Research Funding contribution for Research Projects approved by the JSC, and FAPESP will manage the disbursement of the Research Funding to the various Collaborating Universities chosen through the selection process outlined above. FAPESP will communicate to the recipients of project funds that Microsoft has co-funded the project, and request that Principal Investigators reference that their research is equally supported by FAPESP and Microsoft Research.
3.4 Payment. All payments by Microsoft to FAPESP hereunder will be made in U.S. dollars, by check payable to and delivered to the names and addresses set forth below or to such other address as the FAPESP may designate in writing:
Bank: Banco do Brasil S/A - São Paulo - Brasil
Fundação de Amparo à Pesquisa do Estado de São Paulo
Rua Pio XI, 1500 - São Paulo - Brasil - CEP 05468-901
Telefone: (+55) 11 3838 4000 Fax: (+55) 11 3645 2421
4.1 Periodic Progress Reports. FAPESP will provide to the members of the JSC written summary reports of the progress on each Research Project in a timely manner to allow the JSC to review progress and results. The timing and frequency of such reports will be as agreed by the JSC, but not less often than once every six (6) months. Such progress reports should include information on the progress of the research, an update on the use of Research Funding and the Project Budget, and a description of any research results (e.g. data from tests and experiments, code, demos, prototypes, publications, intellectual property).
4.2 Financial Reports. Every three (3) months during the Term, FAPESP will provide Microsoft with complete and accurate written account and budget reports for all Research Projects funded under this Agreement setting forth the details of all funds received by Microsoft and expended during the previous three (3) month period.
5 TERM AND TERMINATION
5.1 Term. Unless earlier terminated pursuant to this Section 5, the term of this Agreement will commence on the Effective Date and remain in effect until three (3) years thereafter (the "Term").
5.2 Termination. Either party may terminate this Agreement by written notice at any time if the other party is in material breach of any material warranty, term, condition or covenant of this Agreement. Termination under this Section 5.2 will specify the nature of the breach and will become effective thirty (30) calendar days following delivery of the notice to the breaching party unless the breaching party cures the breach during said thirty (30) calendar days period. Each party can also terminate this Agreement without cause at each anniversary date of the Effective Date of this Agreement provided that it has notified the other party of such intent in writing at least three (3) months prior to such anniversary date, or any Research Project thereof without cause, upon notice to the other party of such intent in writing at least two (2) months prior to the proposed termination of such Research Project.
5.3 Effect of Termination. If Microsoft terminates this Agreement pursuant to Section 5.2 above, and upon such termination there is Microsoft Research Funding that remains unused, within sixty (60) days of termination, FAPESP will promptly refund such unused Research Funding to Microsoft; provided that FAPESP will be entitled to retain funds to cover previously-made financial commitments that may not be cancelled without liability to FAPESP, which FAPESP will use reasonable efforts to minimize.
5.4 Survival. Sections 5.3, 6, and 7 hereof shall survive and remain in full force and effect after any termination or expiration of this Agreement this section.
6 REPRESENTATIONS, WARRANTIES, DISCLAIMERS, LIMITATIONS OF LIABILITY
6.1 FAPESP's Representations and Warranties. FAPESP hereby represents and warrants to Microsoft as follows:
(a) FAPESP is duly organized, validly existing and in good standing under the laws of the state in which it is organized. FAPESP has been granted all requisite power and authority to enter into and perform under this Agreement.
(b) FAPESP shall observe and comply with all applicable laws and regulations regarding the subject matter of this Agreement.
(c) There is no pending or threatened litigation involving FAPESP that would have any material effect on this Agreement or on FAPESP's ability to perform its obligations hereunder; further, FAPESP is not aware of any indenture, contract, or agreement to which FAPESP is a party or by which FAPESP is bound that prohibits or would prohibit the execution and delivery by FAPESP of this Agreement or the performance or observance by FAPESP of any term or condition of this Agreement.
6.2 Microsoft's Representations and Warranties. Microsoft hereby represents and warrants to FAPESP as follows:
(a) Microsoft is duly organized, validly existing and in good standing under the laws of the State of Washington. Microsoft has been granted all requisite power and authority to enter into and perform under this Agreement.
(b) Microsoft will observe and comply with all applicable laws and regulations regarding the subject matter of this Agreement.
6.3 WARRANTY DISCLAIMER. THE ABOVE WARRANTIES ARE THE ONLY WARRANTIES MADE BY THE PARTIES HEREUNDER. ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, ARE HEREBY DISCLAIMED.
6.4 LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE OR INJURY TO PROPERTY OR LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.5 LIABILITY CAP/SOLE REMEDY. EACH PARTY'S TOTAL LIABILITY, IN THE AGGREGATE, FOR ANY CLAIMS OR DAMAGES WHATSOEVER RELATING TO OR ARISING OUT OF A PARTICULAR RESEARCH PROJECT CONDUCTED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, WILL BE LIMITED TO THE TOTAL AMOUNTS PAID TO FAPESP BY MICROSOFT UNDER THIS AGREEMENT.
7.1 Assignment. Except as expressly provided in this Agreement, neither Microsoft nor FAPESP will have the right to assign, delegate or transfer at any time to any party, in whole or in part, any or all of the rights, duties and interest herein granted without first obtaining the written consent of the other to such assignment.
7.2 Compliance with Law and Export Controls. In carrying out this Agreement, the parties will comply with all local, state, and federal laws and regulations. The parties further acknowledge and agree that the transfer of certain commodities and technical data is subject to United States laws and regulations controlling the export of such commodities and technical data, including the Export Administration Regulations of the United States Department of Commerce. These laws and regulations among other things, prohibit or require a government license for the export of certain types of technical data to certain specified countries. The parties hereby agree that they will comply with all United States laws and regulations controlling the export of commodities and technical data.
7.3 Construction. If any provision, or portion thereof, of this Agreement is determined to be invalid or void by a court of competent jurisdiction, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement has been negotiated by the parties and their respective counsel and will be fairly interpreted in accordance with its terms and without any construction in favor or against either party.
7.4 Notices. Any notices or requests in connection with this Agreement will be in writing delivered by commercial overnight delivery or first class mail (air mail if not domestic), certified or registered, return receipt requested, and addressed to the parties as follows (or to such other address as the party to receive the notice or request so designates by written notice to the other):
Fundação de Amparo à Pesq. Estado de São Paulo
Rua Pio XI, 1500, Alto da Lapa
CEP 05468-901, São Paulo, SP, Brasil
A/C: Diretor Científico
One Microsoft Way
Redmond, WA 98052
Attention: Director, Microsoft Research, External Research & Programs
With a copy to: Legal & Corporate Affairs
Attention: Microsoft Research Legal Team
Notices and requests will be deemed given as of the date received. If the addressee fails or refuses to accept delivery, the notice or request will be deemed given as of the date of such failure or refusal.
7.6 Entire Agreement. This Agreement and its exhibit constitutes the entire Agreement between the parties with respect to the subject matter hereof. No variation, modification of or changes to any of the terms or conditions hereof will be deemed valid except by a written agreement dated subsequent to the date of this Agreement and signed by both parties hereto by their duly authorized representatives.
7.7 Headings. The descriptive headings contained in this Agreement are included for convenience and reference only and will not be held to expand, modify or aid in the interpretation, construction or meaning of this Agreement.
7.8 No Agency or Partnership. This Agreement does not create an employer-employee relationship, a partnership or joint venture, or result in either party assuming partnership responsibility or liability.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the Effective Date written above.
- Request for research proposals: