AGREEMENT FAPESP-MICROSOFT RESEARCH - Exhibit A


GRANT AWARD AGREEMENT


MICROSOFT CORPORATION-FAPESP COOPERATION AGREEMENT PROJECTS

GENERAL CONDITIONS FOR THE GRANTING OF THE AWARD

I) The present agreement does not create any kind of labour relationship between the GRANTING AGENCY and the AWARDEE, because it does not entail any employer-employee relationship or aims at the payment of salaries, the benefits of the employees of the GRANTING AGENCY being not extensible to the AWARDEE. In particular, the GRANTING AGENCY will not assume responsibility or be liable for medical or dental care assistance of the AWARDEE in any case.

II) The budget will be disbursed according to the financial schedule proposed by the AWARDEE, occasionally with changes approved by the GRANTING AGENCY.

Sole Paragraph – The financial schedule may be modified at the request of the AWARDEE and upon agreement by the GRANTING AGENCY.

III) Financial resources put at the disposal of the AWARDEE should not be deposited at the AWARDEE’s bank account, being instead deposited in a joint AWARDEE-GRANTING AGENCY bank account, the application of the money in the financial market being prohibited.

IV) The award granted should not be used, under any hypotheses and not even only partially, to any diverse ends than those indicated in the preamble of this award agreement, the AWARDEE being personally responsible and liable by its correct use in accordance with the current legal dispositions.

V) The AWARDEE is obliged to reference the support received from FAPESP and Microsoft in theses, dissertations, papers, books, abstracts of work presented in meetings and in any other published or broadcasted material that have resulted, wholly or partially, from awards and fellowships granted by the GRANTING AGENCY.

VI) Payment of maintenance and living expenses will be considered by the GRANTING AGENCY exclusively within the validity of this award. In the case costs of maintenance and living expenses are incurred out of the validity of this award, existing differences should be reimbursed by the AWARDEE to the GRANTING AGENCY.

VII) In the case the grant includes the acquisition of permanent material, whether national or imported, the disposal of the resources will be conditioned to the presentation by the AWARDEE of two copies of a “Term of Acceptance of Transfer of Domain of Materials by Concession or Donation” signed by some duly authorized representative of the Institution, such that the AWARDEE could, afterwards and upon his judgment, cede or donate institutionally the whole or part of the materials. It is guaranteed to the AWARDEE full and effective use of the permanent material object of the award.

Sole Paragraph – In the case private institutions participate in projects and programs supported by FAPESP, donation will be conditioned by the terms of article 17th, item II, sub-item ‘a’ of the Brazilian federal law nr. 8.666 of June 21st, 1993, and its later modifications.

VIII) All material acquired in accordance to the present agreement will be hosted in the Research Institutions, Companies, or Public or Private Organizations at which the research will be conducted by means of a “Term for Concession of Use” entered by the GRANTING AGENCY and the institution, being assured to the AWARDEE the full and effective use of the material.

IX) Every time the grant includes importation of permanent material or consumption items, FAPESP, as the GRANTING AGENCY, after liberation from Customs will emit a “Term for Concession of Use” to the Research Institution, Companies, or Public or Private Organizations at which the research will be conducted. This “Term for Concession of Use” will stipulate the conditions under which the material is being ceded, guaranteeing to the AWARDEE full and effective use of the materials during the execution of the projects to which the concession is related.

X) When direct importation is exercised, the legal norms regarding the examination of similar substitute items of national precedence should be observed.

XI) The financial reports of the grant awarded will be presented by the AWARDEE in the dates indicated in this agreement and in accordance to the instructions annexed, which, independently of actually being transcribed, become an integral part of this agreement. Any credit balances of the research projects shall be restituted to FAPESP, in cash or by check in favor of FAPESP, upon the presentation of the final financial report.

XII) The financial reports will be filed contingent of a definitive approval based on a favorable recommendation by the Audit Department.

XIII) Besides and irrespective of clauses XI and XII in this agreement, The AWARDEE is obliged to present to the GRANTING AGENCY abridged half-yearly progress reports of the research plan as well as annual reports containing conclusions of the results obtained so far. Such reports will be analyzed by the JSC for the FAPESP-Microsoft cooperation.

XIV) In case of missing or impediment of the AWARDEE, the GRANTING AGENCY should be immediately notified.

XV) The AWARDEE and Hosting Institution accept responsibility to verify, anytime, if the execution of the project translates or can be translated into the subject matter of patents, utility models, industrial designs or any other form of intellectual property (“Invention”). In such case, the AWARDEE/Hosting Institution is obliged to notify FAPESP before the publication of the matter in any journal, annals, periodicals, theses or any other form of publicity that may put the invention into public domain. FAPESP will immediately notify Microsoft of each and every Invention. Within a reasonable time before publishing, presenting or otherwise publicly disclosing the results of a Research Project, AWARDEE and Hosting Institution will provide FAPESP with a draft of the proposed publication or presentation and will work with FAPESP and Microsoft to ensure that the right to obtain protection for certain inventions disclosed in the publication is not lost through publication.

XVI) Patent of invention, utility model, industrial design or any other form of intellectual property deriving from the execution of the project should be filed in the name of the home institution of the principal investigator (PI). The parties agree they will execute such additional documentation as may be reasonably requested to evidence these rights. Since the research proposal, object of this Agreement, is co-funded by Microsoft and Fapesp, the Hosting Institution at which the PI is affiliated hereby:

§1st: Grants Microsoft and FAPESP a non-exclusive, irrevocable, royalty-free, worldwide right and license to make, have made, sell, have sold, import, copy, display, translate, publicly perform, create derivative works of, broadcast, transmit, rent, lease and lend any intellectual property arising from the funded research project including, as to Microsoft, the right to sublicense any or all of the foregoing rights within Microsoft’s sales and distribution channels for its products and services and as to FAPESP, the right to sublicense any or all of the foregoing rights within State of São Paulo owned organizations and institutes.

§2nd: Grants Microsoft the right of first refusal to obtain an exclusive license to any intellectual property arising from the funded research projects. Microsoft will have sixty (60) days from the date it receives an Invention disclosure (as described in Section XV) to invoke its option to negotiate an exclusive license to AWARDEE/Hosting Institution’s rights in the Invention. If Microsoft notifies AWARDEE/Hosting Institution that it wishes to enter into an exclusive license, the parties will have six (6) months from date of that notice to in good faith negotiate the exclusive license during which time AWARDEE/Hosting Institution will not discuss intellectual property or licensing issues regarding the Invention with any third parties. Hosting Institution may retain a personal, nontransferable right to practice the exclusively licensed Invention for noncommercial academic research and teaching purposes.

§3rd: Grants Microsoft the right to file any intellectual property arising from the funded research projects for protection if the relevant projects Hosting Institutions decide not to do so.

§4th: In any case, FAPESP will take part in the profits, royalties or any other kind of benefits accrued to the hosting institution through the exploration of the intellectual property resulted from the research projects. This will be established through a separate agreement between FAPESP and the Hosting Institution and does not affect or impede any rights granted to Microsoft as described herein.

XVII) If the research project covered by this Agreement leads to further AWARDEE/Hosting Institution and Microsoft research cooperation in the form of joint research projects involving researchers from Hosting Institution and Microsoft, Hosting Institution and Microsoft will jointly own any works or inventions jointly created, conceived or reduced to practice and each will have the rights of a copyright or patent owner with no duty to account to, pay royalties or obtain consent from the other. Microsoft will also have the right of first refusal set forth in Section XVI, §2nd, above, with regarding to Hosting Institution’s rights in such joint works and inventions.

XVIII) The AWARDEE/Hosting Institution should take the necessary steps to protect the intellectual property according to the norms of the institution and the terms of the agreement entered by the institution, accompanying the technical and legal measures and other provisioning adopted by the institution that are requested by the competent organizations and communicating FAPESP on the ongoing results of the measures on the scientific reports to be presented.

XIX) The disbursement schedule, which is an integral part of this grant award agreement, should necessarily specify the respective disbursements by FAPESP and by Microsoft on the project.

XX) By virtue of the grant that has been awarded to the AWARDEE, he/she agrees to emit, gratuitously, evaluation reports in his area of knowledge when requested by FAPESP.

XXI) The AWARDEE/Hosting Institution declares his/her/its acceptance, without objections, this award as provided in this agreement, and becomes responsible by the execution of the present agreement in all its contents, clauses, and conditions, and that he/she/it agrees with any diligence that the GRANTING AGENCY decides to proceed with, in accordance with Item III of the 3rd article of the Brazilian federal law nr. 5.918 of October 18th, 1960.

XXII) Violation of any of the clauses and conditions set forth herein by the AWARDEE, Microsoft or the Hosting Institution will imply the termination of the agreement and retrieval of the material acquired within the scope of the project and refund of funds that remain unused.

XXIII) Funding for the research covered by this agreement will be provided by FAPESP and by Microsoft, according to the Terms of the General FAPESP-Microsoft Agreement.

a. For projects selected within the framework of the FAPESP-Microsoft Cooperation, the matching funds provisioned by Microsoft will be transferred to FAPESP that will take the charge to apportion the funds to the research projects.

b. Microsoft has no obligation for any failure by FAPESP to properly allocate such funds to AWARDEE.

c. In the case Microsoft does not provide the Research Funding agreed between the parties in the competent legal instruments, this agreement will be suspended indeterminately.

XXIV) The AWARDEE declares that he/she has plain capacity to execute the tasks of the project object of this agreement and that he/she/it will put his/her/its maximum efforts to attain its objectives. The AWARDEE does also declare that he/she has notified the competent levels of his/her institution of the needs in infrastructure and institutional support necessary to a smooth execution of the project. In the case the AWARDEE abandons the project without being previously authorized by the GRANTING AGENCY, he/she becomes obliged to restitute fully and immediately to the GRANTING AGENCY the investment made by it to the project.

XXV) In performing a Research Project AWARDEE will not subject the results of the Research Project to the terms of an “Excluded License”. An “Excluded License” is any license that requires, as a condition of use, modification and/or distribution of software subject to the Excluded License that such software and/or other software combined and/or distributed with such software be (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge.

XXVI) If AWARDEE wishes to use for, or incorporate in the results of, a Research Project any Hosting Institution owned materials or technologies (“Pre-Existing Materials”) that may be subject to Hosting Institution intellectual property rights, it is understood that AWARDEE has disclosed such dependencies at the time of the signing of this Agreement. If AWARDEE, after submission of the proposal, wishes to use Pre-Existing Materials in the Research Project then AWARDEE will obtain from Hosting Institution all rights necessary to permit Microsoft to exercise its rights under this agreement in the technology developed under a Research Project. If AWARDEE fails or neglects to disclose Hosting Institution Pre-Existing Materials used in the Research Project, Hosting Institution agrees that it will not assert its rights against Microsoft or any Microsoft licensees or sublicensees as to such Pre-Existing Materials.

XXVII) AWARDEE and Hosting Institution represent and warrant that he/she/it has not previously and will not grant any rights to third parties that are inconsistent with the rights granted to Microsoft and to Fapesp under this agreement.

XXVIII) After signature by the parties, this Grant Award Agreement will be effective from the date specified as the initial date of the project.

XXIX) The instructions contained in the annexes to this agreement are considered an integral part of it for all legal purposes.