Contracts and Agreements
A contract is a legally binding agreement, which sets out the rights and duties of all the parties involved.
Contracts form the basis of a relationship around a particular research programme, exchange of information or materials or other collaboration.
Consideration at application stage
When applying for research funding you should consider whether what you include in your application will impact on the contracting process.
Key considerations include:
Collaborator vs Sub-contractor
- The University will sometimes engage in research with a collaborator from another University.
- Have the same intellectual property as the University (agreements drawn up at collaboration stage).
- Sometimes there is a subcontract with another company.
- Contractual agreement to perform a set task.
- Doesn't usually have any intellectual property rights to the information held or produced.
Confidentiality is a legal principal that governs secrecy between parties. It is important when information, knowledge or research results passed to another party need to be held in confidence and not misused. The confidentiality arrangement should be agreed by all persons involved.
The distribution of research is a vital part of academic research, but care should be taken when this involves disclosure of confidential information. Once information has been publicly disclosed (Conversation, email, seminars, poster presentations or interviews etc.) it is no longer confidential, unless that disclosure was under an obligation of confidence.
If the funder wants the results of a piece of research to remain confidential forever, this imposes greater limitations than preventing publication or with holding rights to the Intellectual Property as researchers cannot discuss or refer to research at all.
Contracts are negotiated to limit confidentiality to the confidential information supplied by either party and for confidentiality to be protected for a reasonable duration after the end of the project.
Conflict of interest
You must consider if there is a possibility that a situation may arise in which financial or other personal considerations have the potential to compromise or bias professional judgment and objectivity.
This may include:
Apparent conflict of interest
- In which professional judgment is likely to be compromised.
Potential conflict of interest
- A situation may develop into an actual conflict of interest.
Intellectual Property (IP) is the property of your mind or intellect, including your knowledge, creations and discoveries.
The University should expect to be able to continue building on the results and IP it generates in the course of its research activities.
Commercial sponsors may hope to gain the rights to the results of research because they want to license an application that uses them.
Contracts are negotiated to allow the University to retain full rights to the results of its research while allowing sponsors as much commercial advantage as possible. Any commercial advantage will be subject to a reasonable revenue return to University.
The University has a responsibility to maximize the benefits arising from its research and ensure that it can exercise an appropriate degree of control over the use of IP. This may include receiving a proper share in any benefits arising from the use of such IP, even if the practicalities of its ownership and exploitation are such that IP must be held by another party.
The University's preferred starting position in any research contract is:
- University of Bradford should retain ownership of IP arising from the research it conducts.
- The funder is granted an internal, non-exclusive, research and development license (but not for the purposes of commercial exploitation).
Further information is available on the Intellectual Property pages.
Indemnity and Liability
Liability is the state of being responsible for something. A person or business deemed liable is subject to a legal obligation. A person/business that commits a wrong or breaks a contract or trust is said to be liable or responsible for it. What needs to be included in a contract varies so requires a case by case assessment.
Indemnity is a promise by a third party to pay a debt owed or repay a loss caused by another party. The right to indemnity and the duty to indemnify another for the loss or damage is generally reduced in proportion to the act or omission of another person which contributed to the loss or damage.
A contract commonly includes clauses to confirm that:
- The results of research by definition cannot be guaranteed.
- Individual researchers and the University cannot be held liable for the sponsor's use of the results of research.
- Individual researchers and the University are not responsible for any indirect or consequential loss arising from the research.
- There is a financial cap on the University's liability.
It may be appropriate to negotiate additional limits on the University's liability depending on the project.
Roles and Responsibilities
Roles and responsibilities should be agreed from the outset and may be included in the application.
The application may not provide sufficient detail and therefore agreement regarding roles and responsibilities, that are not covered in the application may need to be agreed at the application stage to prevent misunderstandings at the contractual stage.
Roles and responsibilities are included as one of the schedules of a contact.
Publications can take many forms, such as reports, journal articles, patents, confidential information or trade secrets, know-how and trademarks.
Academics should expect the right to publish all the results of their research including where relevant, the submission of a student thesis for examination (counted as public disclosure), without delay.
Funders may wish to delay publication, typically to assess Intellectual Property opportunities or to delete information that may be considered copyrighted to the funder.
Contracts are negotiated to protect the researcher's right to publish as much as possible, and start from the position that full publication, except for confidential information belonging to the funder, is required with minimal review and delay. If the funder has different requirements the PI must consider how far these are compatible with responsible publication and the University's educational mission.
It is important to consider VAT at the application stage so that a piece of research does not cost the University more than expected to carry out.
Three main considerations regarding VAT:
- Is the piece of work the University is engaged in exempt from VAT
The supply of research is exempt from VAT when it is supplied to another eligible body. The University must determine the status of the customer and, if not satisfied that the customer is an eligible body, VAT should be charged.
HMRC regard research as meaning 'original investigation undertaken to gain knowledge and understanding'. It is the intention at the beginning of a project that determines whether supply qualifies as research. The fact that a project may have a specific commercial application does not necessarily mean that it cannot also be research.
Research undertaken for charities, research councils or government bodies will usually be outside the scope of VAT as long as its purpose is for the public good. If the funder is being given sole rights to any IP generated with no University publication rights then VAT should be charged.
- Will purchase of goods or services be required to carry out the research include VAT, be VAT exempt or zero rated VAT?
When deciding on what you need to carry out a piece of research it is important to ensure you are clear whether the goods and services you are purchasing include VAT or not, or whether they are VAT exempt or not. This will make sure that the University presents the correct cost of carrying out the research to the funder. It is very difficult to change the amount awarded once the funder has agreed to support your project.
- Will the research services provided by another eligible body be within or outside the scope for VAT?
If a research charity makes a grant to the University to undertake and coordinate research and the University does not have the capability to carry out for example tests in house they may contract another University to provide a service.
The other University will be charging for a service, which is not research. This would be considered a standard rated supply of service. The agreement between the two Universities would either be a sub-contract or through an invoice.
If you are unsure about VAT, speak to your contact in finance who will be able to advise you further.
Types of research contract (Agreement)
There are several types of contract (often referred to as agreements) associated with research. They vary according to the funder and the nature of the research.
A research contract provides funding for a specific research project or set of projects. It may be funded by a company, government body charity or other body, and will contain terms and conditions governing the conduct of the project, as well as obligations required upon the University and the funder.
The purpose of a research contract is to set out the roles and responsibilities of the parties involved in a research project, the University, the academics, researchers, students and the funding body.
The contract will include:
- A description of the work to be undertaken.
- The financial contributions/payment terms.
- The share of technical, commercial and economic risks of each party.
- Publication rights of results.
- Who will own the results of the work and who has the right to use them.
- Agreed liabilities and indemnities.
A collaboration agreement sets out the responsibilities, roles and rights of collaborating parties working within the University on a specific research project or set of projects.
All parties will be bound by the same terms and conditions, and the agreement will usually set out how the overall project will be managed between the parties. The agreement is often drawn up following a joint award/research funding agreement and the terms of this main award will be reflected in the collaboration agreement.
It may also contain funding terms, for example transfer of funding from the lead partner to other collaborators, or the transfer of additional funding from a commercial partner.
A collaboration agreement is required for work involving at least one other research partner on a project.
The University's research collaboration agreement is based on an agreement developed by the Brunswick Group.
The aim of which is to remove the need to spend time on drafting and negotiation in the majority of cases, and to treat each other in a mutually respectful manner.
European Commission Consortium Agreement
Consortium Agreements for European Commission projects are mandatory for most Framework Programme 7 (FP7) projects and the commission requires that the Consortium Agreement is negotiated and signed before it will sign the Grant Agreement (i.e. the contract) for the project.
The Consortium Agreement is concluded between all partners in the consortium but the Commission is not a party to it. Consortium Agreements supplement the Grant Agreement by expanding on and clarifying key terms and conditions (e.g. Intellectual property, confidentiality, liability, publication rights) and provide details of the internal management and working practices of the consortium (e.g. voting rights, internal reporting structure, dispute resolution).
Research sub-agreement (sub-contract)
This agreement engages a research partner on a specific work package under a research project (or set of research projects) held by the University, and normally involves payments to the partner.
The agreement is often drawn up following a main grant award or another research funding agreement, and will involve discrete and specific pieces of work to be undertaken by a partner organisation.
The University will remain responsible for the main award, but will often flow down any relevant terms and conditions to the research partner, and such as, these will be reflected in the sub-agreement.
Fully funded studentship
The student will conduct the majority of the research under academic supervision. The focus of the research will be the PhD study itself and ultimately the award of a degree to the student.
The funder wil cover tuition fees and bursary/stipend, any consumable/equipment/travel; costs required. Funding often comes from industry and government departments but may also come from other sources.
A novation agreement formalises an arrangement for the replacement of the original party with a new party or the replacement of the original contract with a new contract. A novation for a research project usually occurs when either the principle investigator or a co-investigator moves from one institution to another. It requires the consent of all parties involved in the research project.
Research Contract - UoB lead no collaborators
Collaboration agreement UoB not in the lead
Material Transfer Agreement (MTA)
A Material Transfer Agreement (MTA) is a contract that governs the transfer of research materials between two organisations when the recipient intends to use them for their own research purposes. Occasionally a transfer may include software.
MTA defines the rights of the parties in respect to scope of use of materials, confidentiality, publication, and ownership of Intellectual Property.
These agreements do not include payment for the material other than the reimbursement of transport costs
The two types of MTA are :-
- MTA-out: covers the transfer of materials owned or controlled by the College to another University, company or other external body for research purposes. These are dealt with by the Faculty Research Services teams.
- MTA-in: covers the transfer of materials to the College from another University, a company or other external body.
Confidentiality or Non-disclosure Agreement (CDA or NDA)
This agreement regulates the way in which confidential information, including Intellectual Property, may be disclosed by one party to another. The agreement sets out the terms of disclosure and whether information is returned to the provider or destroyed upon request.
Confidential information includes any information, results or know-how that is owned by someone, and which the owner wishes to be kept secret. The disclosure of confidential information requires that a confidentiality agreement is signed before any discussions take place.
Service/Consultancy Purchase Agreement (relating to research)
This agreement is used to facilitate the commissioning of specific professional services from a third party by the University. No research or novel work is intended to be carried out under these agreements, rather just standard analysis, processing, manufacture or provision if expertise. All results will be owned by the College, with no right of use assigned to the consultant. These agreements are not appropriate to use for a research sub-agreement or collaboration.
Memorandum of Understanding (MoU)
A Memorandum of Understanding is a document intended to describe a two-sided or many-sided agreement between parties. It is often an initial document and is generally not intended to create a legal commitment between the parties but to set out the working principles of the relationship.
Preferred Terms and Conditions
Terms and Conditions
The content of a contract will vary and depends on the activity taking place or the nature of the relationship being entered into. To maintain academic freedom, and to maximise financial and Intellectual Property opportunities, the University will always seek to achieve the best possible terms in a contract.
The Research Support Team provides support on contracting and will advise and ensure consistency of proposals with the University's preferred terms and conditions.
A detailed description of the work is in the contract.
Everyone involved in the agreement must know the basis of the relationship and what activities each is expected to carry out.
Providing as much detail as possible will reduce uncertainty and provide the project with a clearly agreed path to follow.
Key Contractual Terms
Indemnity and Liability
The payment terms or financial contributions are defined in the contract.
The conditions for publications are agreed upon during the contracting stage.
The price represents what the funder is willing to pay and what the University are willing to accept. The price can be equal to, lower or higher than the Full Economic Cost (FEC) of the research.
The FEC of a research project should be recovered wherever possible, it is essential that where work is being funded it is costed and priced appropriately, and in accordance with the University's pricing policies.
The proposed project price should not be disclosed to the funder without internal consultation and authorisation. The market value should be assessed, and in cases where the recovery position is outside the approved pricing policies, authorisation must be sought through the appropriate Faculty Approval mechanisms before the price is disclosed.
Further information is available in the Costing and pricing section.
It is possible that either party may need to terminate the project for a variety of reasons.
These might include reduced interest in the work, resource issues, inability to complete the work, or factors that are beyond normal control, for example the death of a key investigator.
The contracting team will include a clause where the party funding the project or a partner cannot withdraw funding without reasonable cause or notice. A contract should contain a right to terminate the contract, with a notice period of no less than three months and agreement to pay all costs incurred an committed up to the date of termination.
The University should not agree to provide any specific warranty other than the University is able to enter into and be bound by the terms of contract. Wherever applicable the contract should contain an 'Experimental Research Waiver'. This is a clause stating that the results of the work are not warranted or guaranteed in any way and that any liability arising from the use of the results will be entirely the responsibility of the user.