RESEARCH COOPERATION AGREEMENT BETWEEN FAPESP AND UNIVERSITY OF MIAMI
The SÃO PAULO STATE FOUNDATION - FAPESP, 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. Dr. Celso Lafer, 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 July 30, 2013, hereinafter referred to as FAPESP, and the UNIVERSITY OF MIAMI whose principal place of business is in Miami, Florida, USA, represented by Vice Provost for Research, Dr. John L. Bixby, referred to as UM and both hereinafter referred to as Parties, decide to enter into this Agreement, in the following terms and conditions:
Both Parties agree on the importance of cooperation in all areas of knowledge and each desire to allocate funds for research projects involving researchers from UM and those covered by FAPESP in the State of São Paulo, Brazil on the terms contained in this Agreement.
AGREED AS FOLLOWS:
1.1 The following words and expressions shall have the meanings set out below:
“Commencement Date” means the date of this Agreement;
“Research Project” means a joint research project presented through a Research Proposal which is eligible for funding under this Agreement;
“Research Proposals” means joint proposals for joint Research Projects between researchers from University of Miami and researchers from academic bodies/research institutions in the State of São Paulo eligible for funding by FAPESP and University of Miami, submitted in writing within a Call for Proposals;
“Applications” means applications for Research Proposals;
“Researchers” means researchers from the scientific community of either Party;
“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;
“Joint Management Board” means the committee comprised of members in an equal number from both UM and FAPESP and charged with the management of the cooperation program;
“Term” means the period of four (4) years from the Commencement Date of this Agreement;
“Calls for Proposals” means calls as devised and issued by the parties, prepared by the Joint Management Board.
1.2 Any reference in this Agreement to any statute or statutory provision shall be construed as including a reference to that statute or statutory provision as from time to time amended, modified, extended or re-enacted.
2. COMMENCEMENT AND DURATION
2.1 This Agreement shall come into effect on the Commencement Date and shall continue in force for the Term unless terminated in accordance with Clause 7.
3. FUNDING OF RESEARCH PROJECTS
3.1 For the selected proposals, UM will fund the part to be developed by Researchers from UM, and FAPESP will fund the part to be developed by Researchers from the State of São Paulo.
3.2 The funding may cover the costs of research expenses, and travel expenses.
3.3 The funding decisions will be made independently, but based on the mutual agreement, according to each Party’s respective rules, regulations and practices.
3.4 FAPESP will not earmark special funds to support the proposed projects since the proposals submitted to this program will compete with proposals received by FAPESP in its regular programs, and therefore the number of projects selected for funding and the total amount will strongly depend on the number and quality of the submitted projects.
3.5 UM will not earmark special funds to support the proposed projects since the proposals submitted to this program will compete with proposals received by UM in its internal program, and therefore the number of projects selected for funding and the total amount will strongly depend on the number and quality of the submitted projects.
3.6 For the avoidance of doubt, this Agreement creates no obligation on either Party to fund any of the other Party’s Researchers or to provide the other Party with any funding under this Agreement whatsoever.
3.7 Each Party will issue a call to be made public simultaneously in English and Portuguese, both versions of which being equally authentic, inviting their respective Researchers to submit research proposals in any academic discipline to support a collaborative research project involving Researchers of the other Party. The research projects contained in the proposals shall be written in English and be accompanied by an abstract in Portuguese.
3.8 Each Party will be responsible for and establish its own policies for receiving, coordinating, administrating, reviewing, and assessing research proposals and disbursing funds under clause 3.
3.9 For the avoidance of doubt, the existence of this Agreement does not prevent or restrict either Party from entering into cooperation agreements with other institutions.
4.1 To implement this Agreement, the Parties shall establish a Call for Research Proposals, in accordance with national legislation in each country of the Parties and with legislation of State of Florida, in the case of UM, and of State of São Paulo, in the case of FAPESP, and their own budget availability.
4.2 The Parties will appoint two (2) representatives, one (1) from each institution, who will comprise the Joint Management Board and will be responsible for drafting the Call for Research Proposals and for the continuation of this Agreement.
4.3 The representatives aforementioned shall monitor the submission of projects from each Party and monitor the development and performance of the projects.
4.4 For the elaboration of the Call for Research Proposals, the Parties may provide, by separate written agreement, the most appropriate procedures including mechanisms such as: delegation meetings, workshops, correspondence and other procedures.
5. RESTRICTIONS ON BOTH PARTIES
5.1 During the course of this Agreement, both Parties shall not:
5.1.1 Use the other Party’s name or logo or marks, and/or the name of any of its Researchers without the prior written approval from that Party and/or the individual Researcher;
5.1.2 Use advertising copy in relation to this Agreement without the prior written approval of both Parties;
5.1.3 Delegate any duties or obligations arising under this Agreement to a third party otherwise than may be expressly approved in writing by both Parties, such approval not unreasonably to be withheld; or
5.1.4 Make a financial or legal commitment on behalf of the other Party.
6. COMPLIANCE WITH LAWS
6.1 FAPESP and UM shall comply fully with all applicable local, state, and federal government and international laws, regulations and guidelines which are effective during the Term, including those governing health and safety, data protection and equal opportunities and matters such as race and gender equality, disability, age, religion and sexual orientation, amongst other subjects.
7.1 Either Party may terminate this Agreement immediately by notice in any of the following circumstances if:
7.1.1 Either Party is in breach of its obligations under this Agreement and following written notice of such breach from the Party not in breach of the Agreement specifying the breach and requiring it to be remedied, the other Party fails to remedy the breach within a period of thirty (30) calendar days. 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;
7.1.2 Either Party engages in any conduct prejudicial to the reputation of the other Party or its marketing and promotion generally;
7.1.3 Either Party may terminate this Agreement for no cause on giving the other Party not less than six (6) months’ notice in writing.
7.2 If this Agreement is terminated for any reason, then with effect from the date that the notice to terminate is served, no further projects shall be commenced. However, each Party will, where reasonable and possible to do so, continue to provide and allow completion of all research projects commenced before the date of such termination as if the Agreement had not been terminated.
8. FORCE MAJEURE
8.1 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.
8.2 If a Party affected by such an occurrence causes a delay of three (3) months or more, and if such delay may reasonably be anticipated to continue, then the Parties shall discuss whether the continuation is viable or whether the Agreement should be terminated.
9.1 During the term of this Agreement and for a period of five (5) years thereafter, each Party will keep strictly confidential any information disclosed by the other Party which the disclosing Party identifies as confidential information (“Confidential Information”). The receiving Party will only use the Confidential Information in the performance of this Agreement.
9.2 Confidential Information does not include information that (i) is or becomes publicly available other than by breach of confidentiality by the receiving Party; (ii) is communicated to the receiving Party without any obligation of confidence by a third party who is not itself under any obligation of confidentiality; (iii) is already in the possession of the receiving Party, as evidence by written records; or (iv) is required to be disclosed by applicable law, regulatory authority, or court order.
9.3 Notwithstanding anything else herein, nothing in this Agreement shall prevent either Party from producing documents or disclosing information that is required by law.
9.4 This Article 9 shall survive any termination or expiration of this Agreement for the period stated in clause 9.1.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Parties agree that, when the actions taken by virtue of this Agreement result in products of commercial value and intellectual property rights, they are to be regulated by national legislation and international conventions in force. Participants will also observe the Intellectual Property Policy of the Party responsible for the financing of their respective research team.
10.2 In the case of joint ownership of Intellectual Property, the Parties concerned shall establish a co-ownership agreement which lays down conditions for the exercise of joint ownership, taking into account the contributions of each Party.
11.1 Each of the Parties warrants its power to enter into this Agreement and carrying out its obligations hereunder.
11.2 Each Party acknowledges that this Agreement contains the whole agreement between the Parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it. The guarantees above are the only ones given by the Parties. Any other guarantee, whether written or oral, express or implied, is deemed non-existent. However, this clause shall not be construed as excluding liability for fraud.
11.3 This Agreement supersedes any prior agreement between the Parties whether written or oral, express or implied, and any such prior agreements are deemed cancelled but without prejudice to any rights which have already accrued to either of the Parties.
11.4 Any notice to be served on either of the Parties by the other shall be sent by airmail or by e-mail and shall be deemed to have been received by the addressee on the fifth day after the date of posting or e-mailing. Notice shall be sent to the following addresses:
Rua Pio XI, 1500
São Paulo SP, CEP 05468-901
Tel: +55 (11) 3838-4010
Dr. John L. Bixby
Vice Provost for Research
Dominion Tower, Suite 1205J
1400 NW 10th Ave
Miami, FL 33136
11.5 The failure by either Party to enforce at any time or for any period any 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.
11.6 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.
11.7 This Agreement is not intended to establish, and shall not be construed by a Party as establishing any form of business partnership, joint venture, employment or independent contractor 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.
11.8 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.
11.9 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.
11.10 Any dispute arising from the interpretation or implementation of this Agreement will be resolved amicably and expeditiously by consultation or negotiation between the Parties or such other means as they may mutually decide. The applicable laws of each country will be applied to any dispute that cannot be amicably resolved.
This Agreement is completed in English and Portuguese (2 copies each), with both versions being equally authentic.
Vice Provost for Research