FINAL 17 Oct 2016
University of Leeds
Research and Innovation Contract Procedure
SEPTEMBER 2016
FINAL 17 Oct 2016
Executive summary
The following guide is designed to assist readers by:

Giving information on contracts generally;

Giving a short background on the University’s contracting function for research and
innovation matters;

Describing how the University’s non-standard contracting procedure works in
practice;

Setting out roles and responsibilities in the contracting function;

Outlining in annexes some of the common factors which must be considered when
contracting or negotiating a contract on the University’s behalf;

Specifying the initial information needed to prepare contracts as required; and

Providing a list of contractual clauses that need higher approval before being
acceptable.
This document cannot summarise all of the matters which are relevant to research and
innovation contracts but instead it seeks to achieve a balance between providing enough
detail to give the reader a reasonable background in what the University is seeking to
achieve without being too prescriptive as to what is and is not acceptable in a research and
innovation contract.
1
FINAL 17 Oct 2016
1. Introduction
This document aims to aid the efficient review and approval of research and innovation
related contracts.
The University’s Research and Innovation Service (RIS) provides support for research and
innovation activities across the University. The Contracts Team in RIS has the coordinating
responsibility for research and innovation contracts, working with the wider RIS team to
deliver contract drafting, review and approval support. The wider team includes Faculty
Research and Innovation Offices (FRIOs), faculty-based Research and Innovation
Development Managers (RIDMs) and Business Managers in the Faculty of Medicine and
Health. In addition RIS liaises closely with Faculty Finance Offices (FFOs).
1.1.
What is a contract?
A contract is an agreement between two or more parties creating enforceable obligations.
Usually they need one party to agree to do something, such as pay money, or agree not to
do something, such as not let anyone else use a piece of IP. The other party must make a
corresponding promise to the first party. Under English law, generally speaking all that you
need to form a contract is an offer and an acceptance, the exchange of something of value
and a common/mutual intention to enter into legal obligations.
The University requires all research and innovation contracts to be in written form. It should
be noted that verbal contracts can be enforceable and so you could inadvertently create a
contract in a conversation or by e-mail once the important terms of the contract are clear and
provided the elements described above are present. If in doubt you can mark
correspondence sent before the contract is actually signed as “Subject to Contract” to stop a
contract being formed too soon.
A written agreement is the best way to prevent later misunderstandings as to what was
agreed. It is almost always easier to get agreement on what should happen in a particular
circumstance if you deal with it up front, rather than waiting until a problem arises. A good
contract will always try to pre-empt problems. After signature, you should simply have to
follow its provisions rather than having to interpret it in light of what may subsequently have
happened. However, if a problem does arise, a well prepared contract will put all parties in
the best position to resolve the problem.
So before making any commitment in relation to research and innovation activities, staff need
to know the applicable University contracting processes and requirements. There is an
additional risk involved where we undertake work without having a contract in place – this is
likely to mean that there are either no terms agreed or that a previous contract sent by one of
the parties becomes the basis of the agreement because the parties have followed what it
said without signing it.
2
FINAL 17 Oct 2016
In practical terms, the majority of post signature problems or disputes that arise relate to
failure of a sponsor to pay on time and failure of the University to either deliver the work we
have promised to deliver or delivering the work late.
Please note that, as a general principle, English Law allows contracting parties to agree
freely to whatever terms they choose unless those terms are illegal.
The general body of
legislation is there to try to give answers when a particular aspect of a matter or relationship
has not been specifically agreed upon by the parties. It is better in most cases to specify a
particular course of action rather than to rely on laws which the reader probably does not
know and which may change over time.
Some of the key aspects that need to be considered by University staff when entering into
contracts are outlined in Annex 1.
3
FINAL 17 Oct 2016
2.0 Research and Innovation Contracts
There are a range of types of R&I contracts:

research agreements – including funder terms and conditions, contract and
collaborative research or other forms of knowledge transfer – these could be with
other HEIs, public bodies, charities or industry, for example;

Confidential disclosure and materials transfer agreements;

intellectual property (IP) commercialisation;

consultancy (for instance, private services of an advisory nature which necessitate an
intellectual input) and fee-for-service (for instance, paid engagements to deliver
services such as materials testing); and

Staff employment-related research agreements (for instance, visitor agreements or
sponsored chair agreements).
Similarly, there are a number of sources from which a contract can originate; broadly
speaking these are:

contracts on standard approved funder terms;

activities where a University template pre-approved agreement is suitable;

third party contracts or non-standard terms to be reviewed;

bespoke agreements that the University drafts for review by a third party.
These factors impact upon the procedure for review and approval of a contract.
2.1 Research Agreements
Standard Funder Terms and Pre-Approved contracts
The Contracts Team publishes a list of approved standard funder terms and conditions. This
is accompanied by details of any key terms applicants should be aware of when applying for
and receiving funding from these sources. In addition the University has a range of preapproved template documents.
The FRIO may deal (without assistance from the Contracts Team) with:

any contract (including unamended template documents) that has been pre-approved
and made available by the Contracts Team at [website link to be confirmed] and
whose value is less than £2 million sterling;
4
FINAL 17 Oct 2016

any of the pre-approved sponsors’ standard terms listed at:
http://researchsupportarchive.leeds.ac.uk/index.php/contracts/standard_research/tcs
_for_standard_approved_sponsors/ where the full economic cost (FEC) of the project
is less than £2 million sterling (NOTE: Any contract or arrangement where the FEC of
the project exceeds £2 million sterling or where the agreement issued is in relation to
an EU grant must be reviewed by the Contracts Team and be centrally approved by
RIS).
Non-Standard Terms and Contracts
Terms are classed as ‘Non-standard contracts’ where they:
(i)
have not been reviewed or pre-approved by the Contracts Team; or
(ii)
where the funder includes provisions which differ from the pre-approved terms and
conditions; or
(iii)
the contract includes a clinical or human tissue component; or
(iv)
the contract relates to expert witness work in a litigious or contentious context.
For the purposes of this document, RIDMs and the Faculty of Medicine and Health Business
Managers are referred to as the “Business Lead”. The academic or Business Lead should
arrange for review of these contracts, via the FRIO, by the Contracts Team so that
consistency can be achieved across the range of contracts the University enters into.
Please note that, ultimately, it is the University which will have to resolve any problems
which arise out of the contract and this requires the University to be aware of those terms, to
have reviewed and risk-assessed the terms and to know and understand what obligations
are being committed to.
The Contracts Team is responsible for the drafting of University-initiated agreements and
also the review of contracts received from external parties. The Contracts team provides
detailed feedback, comments and advice to the academic and FRM/FFO/Business Lead as
appropriate the Contracts Team input is intended to promote impartiality and consistency.
The University is a charitable body and must be able to demonstrate, in order to maintain its
charitable status, that it generally has the ability to publish the results of its research,
appropriately protect its intellectual property outputs, share any commercially valuable
results with collaborators and be acting in the public benefit.
The Contracts Team adopts one of two different approaches to contract review depending
upon the nature of the matter referred to it. These are:
1) Short-form Review – Contracts between UK universities (including agreements where
the lead institution is subcontracting activity from an industry partner) and agreements
relating to European Commission research and innovation programmes will receive a
5
FINAL 17 Oct 2016
short-form review unless otherwise requested by the FRIO/FFO/Business Lead. The
short-form review considers five key risk factors only:

Retention of Background IP ownership;

Limitations on research use of project results;

Restrictions on future research activities (i.e. flow down of non-compete);

Unlimited University liability or other escalation point contained in Annex 3; and

Severe publication restriction or complete veto.
The Contracts Team will report back to the FRIO/FFO or, where appropriate, the
Business Lead the outcome of the short-form review and, if the contract is approved by
the FRIO/FFO/Business Lead, it can then be signed by the faculty (where value is lower
than £2m and with an electronic copy of the executed contract sent to the Contracts
Team) or by RIS signatories arranged by the Contracts Team (with execution copy sent
to faculty).
2) Full Contract Review - For more complex contracts the Contracts Team will provide
comprehensive review and drafting support. A full contract review will always be
undertaken for:

contract research or consultancy contracts (with a value over £10k for
consultancy);

contracts with a clinical or human tissue component; and

contracts where cash is paid to third parties.
The Contracts Team will liaise with the FRIO/FFO/PI/Business Lead as appropriate
throughout the process of agreeing the contract and will provide a summary of the key
contractual principles.
2.2 Confidential Disclosure Agreements (CDA) and Material Transfer Agreements
(MTA)
The University’s standard CDA and MTA (only for use for non-clinical or non-human tissue
transactions) should be used wherever possible. Clinical or human tissue-related MTAs
should be dealt with by the Contracts Team only
The Business Lead has responsibility for processing and organising signature (the latter in
accordance with a formal delegation, as described in 3.3 below, to the Scheme of
Delegation) of the University standard NDA and MTA agreements. For non-standard NDAs
and MTAs, the Business Lead shall have responsibility for reviewing these against a set
criteria. The Contracts Team will support this activity with legal input and contract revisions
as required. An electronic copy of all fully executed NDAs and MTAs should be sent to the
Contracts Team for record-keeping purposes.
6
FINAL 17 Oct 2016
Where there is no Business Lead, the Contracts Team will carry out this contractual review
and signature service.
2.3 IP Commercialisation
Commercialisation agreements relating to licensing or spinout of University IP are overseen
by the RIS Commercialisation Team. All agreements of this nature are treated as nonstandard. They are inherently high risk and impact upon the ownership and use of University
assets (i.e. our IP). Where an academic or Business Lead has a IP commercialisation
agreement they should in the first instance contact the RIS Commercialisation Team who will
then engage with the Contracts Team to progress.
2.4 Consultancy and Fee-for-service Contracts
Consultancy work must be undertaken in accordance with the University’s Consultancy
Policy, found here http://ris.leeds.ac.uk/downloads/file/1137/appendix_1_consultancy_policy.
Consultancy work with a value of less than £10,000 (excluding VAT) should be carried out
under the standard University terms for consultancy except where the Faculty Dean, for
demonstrably strategic reasons, approves the use of the other party’s terms. Where the
value of the work is going to exceed £10,000, the Contracts Team will review those terms
and, if required, negotiate any changes. In circumstances where the work is for the provision
of an expert witness report or does or may in future involve legal proceedings, this should be
approved appropriately within the Faculty because of the potential for reputational impact on
the University.
Consultancy may involve a degree of measurement or testing and the transfer of materials,
but is dependent on a high degree of intellectual input (i.e. academic time on a contract for
which the 30 day allowance is based). Where clients do not require expert advice, analysis
and interpretation, the work is classed as ‘fee-for-service work’. A key difference to
consultancy for this type of work is that the whole of the invoice value remains with the
University i.e. no personal payments. Fee-for-service activity should be processed via your
FFO.
For further details on this, and a copy of the University’s standard quote and terms, please
see Appendix 1 of the consultancy policy
http://ris.leeds.ac.uk/downloads/file/1137/appendix_1_consultancy_policy
2.5 Staff Employment Related Research Agreements
Academics with authorship agreements or publication agreements can obtain advice and
support from the central Library team on copyright matters. Staff fee-for-Service
work/contracts, secondment and staff placement contracts, standalone data protection
7
FINAL 17 Oct 2016
agreements and Visitor’s agreements fall within the remit of the University’s Central Legal
Advisor’s office and enquires of this nature should be directed to this team.
8
FINAL 17 Oct 2016
3.0 Contracting Procedure
3.1 Information Required by the Contracts Team Prior to Contract Review
In order for the Contracts Team to effectively review and/or draft an agreement there is a
base level of information that the academic PI / Business Lead and FRIO/FFO needs to
provide to them prior to review/drafting commencing. This information is supplied using the
Contracts Team Engagement Request (CTER) form, an overview of the information required
for the CTER is provided in Annex 2. Without this information the Contracts Team could
potentially draft an inappropriate or incomplete contract resulting in delays and protracted
discussions with partners or fail to protect the University sufficiently.
3.2 Contract Review Process
The request to review or draft a contract should be submitted in the first instance to the
FRIO/FFO who will complete the financial information on the CTER form and liaise with the
Contracts Team to progress the matter. A simple flow diagram below illustrates the high level
process.
PI and/or Business
Lead completes the
relevant sections of
the CTER, and sends it
to the FRIO/FFO
Service
FRIO
FRIO/FFO complete the
financials/account refs
and sends the completed
CTER to the Contracts
Team with all relevant
attachments, to initiate a
review/drafting
Contracts Team drafts,
reviews and negotiates with
external funder/partner in
liaison with Business Lead,
as appropriate
Agreements approved,
signed and distributed.
First Point of Contact and Responsibilities
For Research Grant (RG) cash and related agreements:
Completion of financial elements of the CTER form, initial instigator of
Contracts Team engagement, and approval on behalf of faculty of reviewed
and negotiated terms where not managed by the Business Lead; approval on
behalf of faculty of financial terms
In some faculties, FRIOs will also be responsible for processing consultancy
agreements.
FFO
For restricted account cash and related agreements (e.g. CASE/DTP/CDT
studentship industry contributions, Consultancy, fee-for-service):
9
FINAL 17 Oct 2016
Completion of financial elements of the CTER form, initial instigation of
Contracts Team engagement, and approval on behalf of faculty of reviewed
and negotiated terms.
Business
Lead
Where working with PI to support a project: Completion of the non-financial
elements of the CTER form and contract liaison with external partners. The
processing through to signature of NDAs and MTAs (non-clinical and nonhuman tissue only). Approval on behalf of faculty of reviewed and negotiated
terms where managed by Business Lead.
Academics should engage with their relevant faculty point of contact as soon as they know
that they may require a contract to be put in place. The first points of contact and
responsibilities are as follows:
The Contracts Team will then provide support for reviewing and drafting a contract as
required.
KRISTAL must be completed for all cash generating RG contracts which the University is
going to enter into. The Risk Review Dashboard (RRD) sits alongside KRISTAL. The RRD
provides contract approvers with an overview of the risks and advantages of a project and
the underlying contract. An RG contract should not be submitted for signature unless the
RRD is completed.
3.3 Contract Signature
The University has adopted policies relating to the identity of persons who have authority to
sign contracts on its behalf. No-one can enter into or sign a contract on behalf of the
University unless they have been formally delegated specific authority to do so in accordance
with the University’s Scheme of Delegation. Details of authorised signatories can be found at
http://www.leeds.ac.uk/secretariat/policies_procedures_codesofpractice.html. Additionally,
once a Business Lead has attended an appropriate training session delivered by the
Contracts Team, that Business Lead shall be provided, in writing by RIS, with delegated
signatory authority for any contract, including template agreements, which have been made
available [website link to be confirmed] but excluding any of the pre-approved sponsors’
standard terms listed at:
http://researchsupportarchive.leeds.ac.uk/index.php/contracts/standard_research/tcs_for_sta
ndard_approved_sponsors/ . In the first instance, this authority shall be restricted to CDAs
only.
The contract negotiation and signature process is illustrated in Annex 4.
10
FINAL 17 Oct 2016
4.0 Roles and Responsibilities
4.1 Role of FRIO/FFO
1) Progress to signature all RG projects contracting on standard funder terms and preapproved contracts unless managed by Business Lead (see 4.2.4)
2) Directly liaise with Contracts Team to request the review and drafting of contracts.
3) Provide the completed CTER form to the Contracts Team (completed by PI, Business
Lead and FRIO/FFO).
4.2 Role of the Business Lead
1) For projects being supported by the Business Lead, assist the PI with completion of the
CTER.
2) Provide the Contracts Team, via the CTER, with a summary of key requirements relevant
to the contract (Heads of Terms), and assist with the negotiation of commercial terms for
research and innovation related contracts.
3) Named Business Lead will be the principal point of contact with the external
organisation(s) for contract follow-up - liaison with external partners to progress contract
review and signature. The Contracts Team will support with legal input and contract
revisions as required.
4) Review and signature of pre-approved templates where the Contracts Team has
delivered training and ensuring that the Contracts Team is sent an electronic copy of the
fully executed agreements.
4.3 Role of the Contracts Team
Once the Contracts Team has received the completed CTER from the FRIO/FFO, including
all relevant documentation listed therein, the Contracts Team aims to respond and provide
ongoing contractual management of the matter according to the following timetable:
1. To provide a first substantive response (i.e. a review of terms, a draft agreement fit
for purpose, or other contractual response) within 10 working days of receipt;
2. To provide any subsequent contractual response to new comments/edits to a
previously circulated agreement within 5 working days of receipt.
The Contracts Team will work with FRIOs, FFOs and Business Leads to follow up contracts
sent/returned to external partners to ensure a timely discussion of any remaining items and
to facilitate progression to signature. This will be undertaken as follows:
3. Cash bearing and other significant agreements will be followed up with external
parties where a response has not been received by the Contracts Team within 20
11
FINAL 17 Oct 2016
working days of an agreement or correspondence being sent, until the fully executed
agreement has been received by the Contracts Team.
4. All agreements which neither generate nor relate to cash contracts will be followed up
with external parties where a response has not been received by the Contracts Team
within 30 working days of an agreement being sent. No further action after the initial
30 days will be taken to follow up on these minor non-cash bearing agreements (e.g.
NDAs, MTAs), unless the Contract Team are specifically requested to do so by the
FRIO.
Where a Business Lead is associated with a contract, as outlined above, they will undertake
the follow-up with external partners and will inform the PI as each of the above stages is
actioned.
Academics must be reasonably available and accessible to the Contracts Team, the
FRIO/FFO and the Business Lead in order for the contracting process to progress.
12
FINAL 17 Oct 2016
ANNEX 1: Primary Considerations for University Contracts
The following section provides an overview of the primary factors that are considered in
drafting and reviewing research and innovation contracts (full review):
1. Costing and Pricing
The University needs to cost and price the research activity services it provides to avoid the
risk of taking on loss-inducing work, to ensure a fair reflection of overheads costs and to
ensure that there is a fair balance of risk and reward, thus ensuring the risks do not outweigh
the benefits.
http://ris.leeds.ac.uk/info/27/pre_award_application/18/kristal_costing_and_pricing
2. Intellectual Property (IP)
What is intellectual property? - One of the University’s main outputs is IP in various forms.
A short definition might be that it encompasses the output of an intellectual activity where
that is novel – which could be a method of doing something or the creation of a tangible
product – ultimately it will be the expression of one or more ideas for use in particular
circumstances. When a person writes an original article or journal publication perhaps off the
back of research work done, this piece of work will attract copyright – which is one form of IP.
If you create a new (novel) method or process in a laboratory which has a clear use, this
might be capable of being patented – patents being another form of IP. When you write a
bespoke piece of software, the actual code will attract copyright protection. You might invent
a new design with regards to a particular piece of apparatus and this could potentially be
protected as a design right. You could also conduct testing and thereby create a set of data
which has a value and a database can generate IP rights. The above is not an exhaustive
list and there are many other examples. Each form of IP has its own legal framework and
regime with regards to the available protection and the rights it affords to the owner (some
require a registration process (e.g. patents, registered trademarks), for instance; others do
not (e.g. copyright, unregistered design rights)) - and they are all slightly different as between
both different types of IP and as between different national systems. Nonetheless, each type
of IP has, at its core, a right for the owner of the IP not to have their original work copied for
gain by another party (known as infringement of IP).
The University has a clearly stated IP Policy which allows academic inventors of a particular
technology to benefit from the exploitation of their works. A copy of the policy is available at:
http://ris.leeds.ac.uk/info/18/commercialisation/41/what_is_commercialisation/4
This policy is mandatory for all IP emanating from the University.
13
FINAL 17 Oct 2016
Foreground IP- In undertaking a research project, the parties to that project will hope to
have a successful outcome. The outcome could be a wide range of things – improved
knowledge in a certain field, a new piece of software, a new medical device, etc. These are
often referred to as “Results” in a research context and is also referred to as “Foreground IP”.
Some or all of the Results might attract one of the forms of IP protection available. The
Results might be owned entirely by the University; or they could be owned by a collaborator;
or they could be jointly owned, although most parties discourage this latter arrangement due
to potentially conflicting issues downstream. Some IP that the University creates will have an
obvious commercial use or application and could be potentially valuable.
If a researcher or team of researchers wishes to use the Results of a project, whether that is
for further applied research (the next research project, for instance; a follow-on project; in a
studentship context, etc.) or perhaps for commercial use (whether under a licence to an
industrial partner or perhaps in a consultancy context), it is crucial that the University has the
rights to use those Results. If the Results/Foreground are owned solely by the University,
further use is within the University’s control. If the Results of a project are owned by a third
party or are jointly owned with another party, then it is likely that the University will need to
secure the further agreement of the owner or joint owner to go on to use the Foreground
again. This might involve sharing revenues or making other payments to that third party to
secure their agreement.
The University will always want to secure the right to use the Foreground IP from a particular
project for further research and teaching purposes – this is the primary object of the
University – to promote education. If this matter is not properly dealt with in a contract, the
University’s research and teaching activities may be inadvertently curtailed.
Background IP - “Background” IP is the IP that the University (or another party) brings to the
project either at the beginning or part-way through a project. It is clear that the Foreground
IP from one project may become the Background for the next project. It is generally
accepted by collaborators that ownership of a party’s Background IP will remain with that
party. Clearly, Background IP will carry some value; otherwise, it would not be used in a
project. If, for example, Foreground IP cannot be used without also using Background IP to
enable use of the Foreground, the Background IP carries an even greater value because
without access to the Background, the Foreground is of no use. Accordingly, you should pay
particular attention to ensuring that access to Background IP is not given away at an
undervalue – there should be recognition for a party’s contribution of Background IP and the
fact that Background IP is being contributed by the University should always be recorded in a
contract.
Giving a commercial collaborator access to Background and/or Foreground IP – what
is important to consider? - The majority of the University’s commercial collaborators will
hope that a research project will lead to a useful outcome – perhaps even commercially
14
FINAL 17 Oct 2016
useful. For this reason, collaborators are usually very keen to secure access to Foreground
and in many cases, Background too. In principle, there is normally no problem in permitting
access to Foreground IP, however, the University must strive to realise the best value it can
from granting such access. This could be financial value or some other kind of value
(impact, in-kind support, external profile).
3. Risk
As a charitable body, generally the University must act prudently with respect to risk-taking
and pricing. Please refer to the University’s statement on risk at:
https://www.leeds.ac.uk/secretariat/documents/risk_management_guidance.pdf
Any contract can be seen as a mechanism for allocating risk amongst the parties. Parties
will generally allocate the risks amongst themselves in accordance with a number of
common-sense principles. The University cannot (and should not) take responsibility for
matters which are outside of its control – except, perhaps, where the University is adequately
protected by another third party who is not considered to be risky. The University should be
realistic in its design of timescales in contracts and not accept unrealistic timeframes being
imposed on it by a third party. In most cases, careful reading of a contract will reveal where
the areas of risk are and these should be considered in light of how those risks may be
removed, minimized or otherwise insulated against.
4. Warranties, indemnities, representations, limits on liability and related issues
Warranties and indemnities
Warranties and indemnities are a means of reallocating risk. In almost every contract there
will be a requirement to make contractual statements and/or promises regarding some key
areas of concern to a third party. Statements, for example, that the relevant IP does not
infringe anyone else’s IP; or a warranty that the University owns all of the background IP; or
that the IP will fulfil a particular purpose and so on may be required from either party prior to
entering into an agreement. It may be requested that these statements are incorporated in to
a contract as warranties and, if it is later proven that a statement (warranty) is untrue, there
could be claim for damages for breach of contract if the party relying on the statement can
show that they have sustained a loss. The University will not give warranties which carry an
undue level of risk and all warranties are carefully considered.
An indemnity is essentially a separate and independent promise by the seller to reimburse
the buyer in respect of a specific potential liability. This liability may or may not arise in the
future but, if it does, an indemnity provides a contractual right for pound for pound
compensation in respect to a specific loss. The University typically resists giving any
indemnities, this is because of the experimental nature of much of the work that we
undertake and the complex and broad range of research areas that we operate in (and
15
FINAL 17 Oct 2016
hence there are large number of unknown variables; IP freedom to operate,
legislation/regulation, etc.).
Representations
Representations are statements of fact made with the purpose of inducing a party to enter
into a contract. The University should strongly resist giving representations and any
representation to be given by the University should be deleted from a contract. A suitable
warranty is preferable in these circumstances because the measure of damages and
alternative remedies for breach of a representation are often more punitive from the
University’s perspective than for a breach of warranty.
Limits on liability
In terms of the University’s potential liability under a contract, this can be limited by reference
to any number of factors which will help to ensure that the University’s exposure is
appropriate. So, if the University is giving warranties or indemnities, liability under those
provisions – and under the contract generally – should be limited or capped appropriately.
When the University is the recipient of the benefit of a warranty or an indemnity, we should
not seek to put a limit or cap on liability of the other party unless the other party requests
such a cap and even then, the limit must be appropriate in the circumstances of the matter in
hand.
The University must not accept liability for “consequential losses” or “indirect losses” and
such provisions must be deleted.
5. Restrictive Clauses
Research contracts entered into by one Faculty could inadvertently prevent other parts of the
University undertaking research work. For this reason, care must be taken not to accept
restrictions on future University work or conduct which are unqualified. A restriction on one
particular academic or research group may be acceptable to the relevant academic(s) but it
must be limited to them alone
6. Public Benefit
The University is a charity. To retain charitable status, research within the University must
comply with the University’s educational charitable objectives. A part of this requirement is
that research must be of public benefit and therefore, where such dissemination is in the
public’s interest, it should be disseminated accordingly
7. Publication and Impact
16
FINAL 17 Oct 2016
Academic staff and students are required, as part of their role at the University, to publish in
suitable reputable academic journals/periodicals, papers submitted for conferences or
seminars and lectures and for the publication of a thesis for a higher degree. This is vital for
the University’s reputation and ranking alongside its peers in the HEI community, but also in
relation to the submission for the REF in connection with providing suitable Impact case
studies, and also for the academic and student reputation/career path. Given that research
agreements are almost certain to involve the acquisition of new knowledge, only in very rare
circumstances will the University agree not to make publications and efforts should be made
to ensure that collaborators are willing to provide assistance with generating Impact case
studies. Building in short delays in order to secure IP protection or allowing the
sponsor/collaborator to delete any of their confidential information are normally acceptable,
however.
8. State Aid
State Aid is, broadly speaking, the concept of a European State providing financial support to
companies or an industry which breaches competition law. This can happen inadvertently if,
for example, a publicly-funded entity such as the University provides services to a third party
at less than FEC without the University deriving sufficient benefit from the work. That benefit
can be secured by the University owning outright, or sharing in appropriate proportions, the
IP flowing from the works.
If contracts feature significant risks, including some or all of the above factors, the Contracts
Team will escalate that contract in accordance with Annex 3 in order to secure central
authorisation for the University to enter into that contract.
17
FINAL 17 Oct 2016
ANNEX 2: Contract Team Engagement Request
The information requested includes:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
A general description of the circumstances giving rise to the request for contract
review or preparation with an outline of what the requestor or PI is ultimately
seeking to achieve;
Type of agreement required e.g. Subcontract, Collaboration Agreement, MTA,
amendment to existing agreement, etc.;
The partners involved and contact details (including precise identification of the
contracting companies);
Project specification and description of the work (including any strategic benefit of
the contract);
Price and % of FEC being recovered from funder, other financial details (payment
schedules etc.);
Any existing agreements relating to the project and/or results;
Whether there is any University Background IP that the funder/collaborator need
to access (and if this is formally protected e.g. is it patented);
Whether there is any third party Background IP that the University needs to
access;
Whether the results of this project are likely to generate commercial interest and if
there is an agreement on, or discussions have taken place regarding ownership of
any Foreground IP;
Publication considerations in excess of the standard academic position, which is
that the University may publish, subject to a reasonable and timely review by the
funder;
Any other specific concerns/issues or prior discussions the Contracts Team needs
to be aware of – including an assessment of the loss or damage if the University
breaches the contract; and
Where there are multiple parties or contracts, an explanation of what the roles of
these parties are and how all of the interactions or relationships fit together;
For clinical studies, i) the name of the organisation acting as sponsor (which may
or may not be the University) and ii) confirmation of application for HRA ethical
approval
18
FINAL 17 Oct 2016
ANNEX 3: Contract escalation points
Certain terms in research or innovation contracts are objectionable and problematic for the
University. When (i) such a contractual term crops up; (ii) it cannot be resolved through
negotiation with the other party; and (iii) the faculty has accepted the risks involved, the
Contracts Team flags up the issue with an appropriate person. The appropriate person (in
order of severity of the relevant provision) is:



A RIS signatory identified in the University’s Scheme of Delegation; or
Relevant Faculty Dean; or
Deputy Vice Chancellor for Research and Innovation.
The contractual terms identified below (which are not in any specific order) comprise the
current list of points which the Contracts will escalate.
1. Joint and several liability with other parties, especially where we are a subcontractor
on a bigger project;
2. Unqualified block on publications in research or innovation matters where a
publication with good impact would otherwise be expected;
3. Either unlimited liability (except for breach of confidentiality or mitigated 3rd party IP
infringement) on large value or high risk projects or a capped liability which is wholly
inappropriate in the context of a particular project (note: does not include standard
approved sponsors);
4. Contractual restrictions on research and innovation activities which bind the whole
University;
5. Funder acquires ownership or exclusive rights to our background IP without
appropriate recompense;
6. Warranties/representations regarding “Public Officials” (normally arises in the context
of anti-bribery provisions) applicable to the whole University;
7. Unjustified personal liability of individuals representing the University (academics,
students, officers);
8. Matters which are highly sensitive by virtue of current affairs or political developments
or are otherwise at the forefront of public issues;
9. Matters involving unmitigated conflicts of interest;
10. Unqualified block on the University using the results of a research or innovation
project in further research and teaching;
11. “Reach through” rights which give a funder of an initial project rights to results
generated by the University in a subsequent project without appropriate recompense;
12. Inappropriate law and jurisdiction clauses;
13. Guaranteed outcomes or fixed solutions required by a contract.
The question will occasionally be one of degree and the Contracts Team assesses the
impact of relevant provisions in the overall context of the aims of the relevant project. The
above-listed factors are not set in stone and may be refined or added to over time. Wherever
possible the Contracts Team, and RIS as a whole, try to act reasonably in the application of
the above escalation points.
19
FINAL 17 Oct 2016
Additional escalation points (to be confirmed) will apply in the case of clinical research and
innovation.
20
FINAL 17 Oct 2016
ANNEX 4: Contract Negotiation and Signature Process
1