COOPERATION AGREEMENT BETWEEN SAO PAULO RESEARCH FOUNDATION AND THE UNIVERSITY OF NOTTINGHAM
The SAO PAULO RESEARCH FOUNDATION , established by Law nº 5.918, of October 18th, 1960, with headquarters at Rua Pio XI, 1500, Alto da Lapa, São Paulo, SP, enrolled in CNPJ/MF under nº 43.828.151/0001-45, herein represented according to article 11, “a” of Law nº 5.918, combined with its General Rule approved by Decree n° 40.132, of May 23, 1962, represented by its President, Prof. JOSÉ GOLDEMBERG, in the exercise of the powers delegated by Act of the Governor of the State of São Paulo, published in the Official Gazette of the State, of August 21st, 2015, hereinafter referred to as FAPESP, and The University of Nottingham a body incorporated in England and Wales by Royal Charter with registration number RC000664, represented by Dr Richard Masterman, Associate Pro-Vice-Chancellor for Research Strategy, hereinafter referred to as UoN and both to as “Parties”:
CONSIDERING the importance of promoting cooperation in scientific and technological research between UoN, United Kingdom and the State of Sao Paulo, Brazil, wishing to strengthen this cooperation on the basis of equality and mutual benefit;
CONSIDERING need to strengthen the links between the scientific communities of both countries and also to encourage new forms of collaboration between its research centers;
WISHING to promote initiatives collaboration in scientific research and technological development in priority areas of interest to both parties, fostering bilateral cooperation;
Agree as follow:
Through this Cooperation Agreement, the Parties will implement scientific and technological cooperation between researchers from UoN, United Kingdom and from the State of Sao Paulo, Brazil, through the funding of joint research projects.
2. Methods of Collaboration
The Parties will promote such collaboration, observing its international obligations and domestic laws and other existing regulations through mechanisms such as:
a) Implementation of joint research projects on issues of common concern, exchanging knowledge and results;
b) Organization of scientific and technological seminars, specialized workshops, symposia and other scientific meetings of mutual interest, to promote interaction between institutions and research groups relevant to both Parties, with the goal of identifying future areas for cooperation;
c) Activities of scientific exchange that will help prepare the ground for the development of cooperative research projects between teams from the State of São Paulo and from UoN, including but not limited to, scientific exchange visits, workshops and bilateral scientific seminars.
3. Scientific Areas
The activities mentioned in Clause 2 could be developed, in principle, in all areas of knowledge. Areas of interest can be specified by the Joint Steering Committee, in the calls for research proposals.
a) The Parties shall undertake one or more specific duties described in Clause 2 and in accordance with the scientific relevance and the national legislation in each country of the Parties and their own budget availability.
b) The Parties will appoint two representatives one from each Party, which will form a Joint Steering Committee responsible for the continuation of this Agreement, as specified in the clause 5, below.
c) In order to comply with Clause 2, the Parties may provide, by agreement, the most appropriate procedures including mechanisms such as: delegation meetings, workshops, correspondence and other procedures.
d) Each Party will receive and review the proposals for research according to its own criteria and rules. After the revision of the proposals, the Parties will decide in a meeting which proposals will be supported.
e) The Parties may establish joint procedures for the submission and review of the proposals in case of mutual interest and the decision of the Joint Steering Committee.
5. Joint Steering Committee
a) The Joint Steering Committee will be responsible for drafting the call for proposals and to Manage the research projects selection. This Board may include the Pro Vice Chancellor (Research) of UoN and the Scientific Director of FAPESP, or his delegates.
b) It is envisaged that Joint Steering Committee business will be conducted in the form of meetings, conference calls or exchange of e-mails.
c) The Joint Steering Committee shall monitor the submittal of projects from each Party and monitor the development and performance of the projects.
d) Both parties agree to nominate in each side a person to act as a single point of contact.
a) For each of the research projects that are approved, UoN will assume the funding of research teams from the United Kingdom and FAPESP of the research teams from the State of Sao Paulo, Brazil, in all cases according to their national rules and regulations and budget availability.
b) The amount for funding to be offered to support collaborative research projects will be defined by the Joint Steering Committee in each call for proposals.
7. Intellectual Property
a) Unless expressly covered in specific individual research project agreements made by the Parties, the following provisions shall apply:
I) The ownership of Background Intellectual Property will not be affected by this Agreement and ownership will remain vested in the Party to which it belongs. However, where legally free to do so, the Parties shall grant to the other Parties a non-exclusive, royalty free licence of their Background Intellectual Property for the term of this Agreement and only to the extent that such a licence is required to enable a Party to fulfil its obligations under this Agreement.
II) Ownership of any Foreground Intellectual Property shall be vested in the Party generating it. Each Party grants to the other Party an irrevocable, non-exclusive, non-transferable, royalty-free licence to use all Foreground Intellectual Property generated in the course of the Project for academic and research purposes, including research involving projects funded by third parties provided that those parties gain or claim no rights to such Foreground Intellectual Property.
III) The Parties agree that when the actions taken by virtue of this Agreement result in products of commercial value and intellectual property rights, they will be regulated by national legislation and international conventions in force. Participants should also observe the Intellectual Property Policy of the Party responsible for the funding of their team.
IV) In the case of joint ownership of Intellectual Property, the relevant parties will in good faith endeavor to establish a joint ownership agreement regarding the allocation and terms of exercising that joint ownership, taking into account the relevant contributions of the Parties.
b) For the purposes of this clause:
i) “Intellectual Property” means any intellectual property rights of any description including, but not limited to, patents, copyrights, registered and unregistered design rights, know-how, database rights, registered and unregistered trademarks, service marks, logos or marks of a similar nature, and any other rights in any invention, discovery or process, existing in any jurisdiction and all rights to apply for the same;
ii) "Background Intellectual Property" means intellectual property already owned by a Party prior to the commencement of a project or developed or acquired outside the scope of a project by a Party and introduced into the project by such Party, including any modifications, improvements, derivatives or progeny thereof;
iii) “Foreground Intellectual Property” means such intellectual property that is created, devised, developed or made in the course of work on a project excluding any Background Intellectual Property; and
iv) "Joint Intellectual Property" means individually and collectively all Foreground Intellectual Property which is generated collaboratively by two or more Parties in performance of a project under this Agreement.
a) This Agreement shall be valid for a Term of 5 (five) years from the date of its signing and may be extended by mutual agreement between the Parties in a written amendment to this Agreement.
b) Either Party may terminate this Agreement immediately by notice in any of the following circumstances if:
i) Either Party is in breach of its obligations under this Agreement and, following notice of such breach from the partner, fails to remedy the breach within a period of 30 working days by the party not in breach of the Agreement specifying the breach and requiring it to be remedied. This clause is valid so far as the breach may be remedied but nothing in this clause is intended to require a party to serve notice of any breach before taking action in respect of it;
ii) Either Party engages in any conduct prejudicial to the reputation of the partner or its marketing and promotion generally;
iii) Either Party may terminate this Agreement by giving at least six month’s prior written notice to the other.
c) The termination of this Agreement shall not affect or bring harm to the implementation of projects and programs already approved or which had already started, in which case the Parties should keep their budget for the projects and programs during the term of its validity, as if the agreement was still valid.
9. Audit and Indemnity
a) FAPESP and UoN shall indemnify and keep fully indemnified each other from and against any and all loss, damage or liability (whether criminal or civil) suffered and legal fees and costs incurred by one party resulting from any breach of this Agreement or other negligent acts or omissions by the other Party, except that neither Party shall be liable to the other for any indirect or consequential loss, damages, claims or demands arising out of this Agreement or projects, including without limitation any economic loss or other loss of income, profits, business, opportunity or goodwill no matter how arising, whether by breach or by negligence and whether in contract, tort or otherwise.
b) FAPESP and UoN shall comply fully with all applicable local, government and international laws, regulations and guidelines which are effective during the Term, including those governing bribery and corruption, health and safety, data protection and equal opportunities matters such as race and gender equality, disability, age, religion and sexual orientation.
c) FAPESP and UoN shall fully co-operate with any financial audit or other enquiries reasonably required by either party.
a) During the Term of this Agreement both Parties shall not:
i) use the other Party’s name or logo, or the name of any of its researchers without the prior written approval from the other Party;
ii) use advertising copy in relation to this Agreement without the prior approval of the other Party;
iii) to make financial or legal commitments on behalf of the other Party.
b) All Confidential Information exchanged between the Parties or learned during the course of this Agreement shall, for a period of five (5) years from the date of receipt of such Confidential Information, be treated as confidential and shall not be disclosed to third parties without express prior authorisation from the Disclosing Party. Confidential Information of a Disclosing Party shall not be used by the receiving party except for the purpose of fulfilling its obligations of this Agreement unless otherwise agreed in writing by the Disclosing Party.
c) For the purposes of this clause, “Confidential Information” means all information of whatever nature or form that is disclosed by a Party (“the Disclosing Party”) to a another Party (“the Receiving Party”) and which is either clearly marked as confidential or if disclosed orally or visually, but was, at the time of disclosure indicated to be confidential.
a) Any notice to be served on either of the Parties by the other relating to this Agreement shall be made in writing and shall be sent to the following addresses:
Rua Pio XI, 1500 - Alto da Lapa
CEP 05468-901 - São Paulo / SP - Brasil
Att.: Scientific Director
Research and Graduate Services
The University of Nottingham
Kings Meadow Campus
Nottingham NG7 2RD
Att: Head of Research Grants and Contracts
b) Service of notices relating to this Agreement by fax or email shall not be considered effectively serviced, unless the same written notice is also delivered by hand, courier or sent by post.
This Agreement may be amended in writing by mutual consent of the Parties.
13. Force Majeure
a) A Party shall not be liable for failure to perform its obligations under this Agreement, nor be liable to any claim for compensation or damage, nor be deemed to be in breach of this Agreement, if such failure arises from an occurrence or circumstances beyond the reasonable control of that Party, including, without limitation, war, terrorism, industrial disputes, fire, flood, tempest and national emergencies. Should a Party be so delayed, prevented or impeded, it shall promptly inform the other Party of the nature of the relevant cause and of the expected duration of the delay or impediment.
b) If a Party affected by such an occurrence causes a delay of 3 months or more, and if such delay may reasonably be anticipated to continue, than the Parties shall discuss whether the continuation is viable or whether the Agreement should be terminated.
a) Each Party covers its own administration costs regarding its contribution to the call, unless otherwise jointly decided in writing.
b) This Agreement is subject to the constraints of time and availability of resources and funds in the budget of the Parties and the applicable laws and regulations of their respective countries.
c) The Parties shall maintain the highest ethical and legal standards in funding research under this Agreement.
d) The Parties shall negotiate in good faith to resolve any dispute, claim or proceeding arising out of or relating to this Agreement by submitting the dispute for resolution within the Parties’ institutional hierarchies.
e) If there is a dispute that cannot be resolved pursuant to the provisions of Clause 14 d) within 60 days then the dispute may be referred by either Party to mediation forthwith. Should either Party refer a dispute to mediation, the Parties will attempt in good faith to resolve the dispute to mediation in accordance with the procedure established by the Parties. The cost of any mediation shall be divided equally between the Parties.
f) Any dispute which is not resolved within 30 days after the commencement of the mediation procedure shall be considered unresolved and either Party may commence proceedings against the other thereafter.
g) Unless otherwise agreed in writing the Parties shall continue to comply with their obligations under this Agreement during the programme of the dispute resolution procedure set out above with respect to all matters.
h) This Agreement shall be subject to the laws of the first offending Party and the Parties agree to the exclusive jurisdiction of the courts of the first offending Party with regard to any dispute arising from it or its subject matter.
i) The failure by either Party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
j) Each Party shall not assign or sub-contract any of its rights or duties under this Agreement without the consent in writing of the other Party, such consent not unreasonably to be withheld.
k) This Agreement is not intended to establish, and shall not be construed by a Party as establishing any form of business partnership between themselves or to have created the relationship of principal and agent, a membership or any other legal entity between the Parties, other than as specifically and expressly set out herein.
l) Except as otherwise expressly provided for herein, nothing in this Agreement shall confer or purport to confer on any third party any benefit or any right to enforce any term of this Agreement.
m) Each Party agrees to comply with, and provide reasonable assistance to the other Party in relation to their relevant national data protection and freedom of information legislation, in so far as this legislation relates to this Agreement.
Signed by the Parties in two original copies in English and Portuguese, both texts being equally valid and authentic.
The University of Nottingham