Contract Negotiation Thomas E. Walsh, Ph.D. Director, Sponsored Research & Compliance, University of Florida Research Administration Training Series November 18, 2010

Contract Process

TYPES OF CONTRACTS Research Agreements Federal Contracts Confidentiality Material Transfer Agreements Non-compete Agreements Teaming Agreements Licensing and other IP Agreements Clinical Trials Purchase Orders Subcontracts

Provides background and rationale. Identifies parties. Identifies consideration. Prefer two party agreements. Standard Opening Paragraphs Two “ Whereas” and one “Now, Therefore”

The contract should be between the institution and the sponsor. PI should not sign on behalf of the institution. The institutional official should sign and bind and warrant that they have such authority

UF CANNOT indemnify the other party Beware of hidden indemnification language such as patent infringement. Indemnification language may appear in different sections of a contract. Hold harmless language is similar to indemnification language. The “ I “ Word

Offer “ boiler plate” language that allows you to assume liability for your own acts and omissions. Use state self-insurance language whenever possible or language that limits insurance to the extent your institution has coverage. Alternative: Declare Responsibility

Follow the laws of Florida – or be silent Do not accept other jurisdiction or venue. Jurisdiction Venue Whose Law Applies ?

LOCATION, LOCATION, LOCATION Jurisdiction means in what location (county, state, country) will the contract be subject to law. A court system may have jurisdiction (power) to take a case in a wide geographical area, but proper venue for the case may be one place within the area. Venue means in what location will disputes or other legal matters be resolved. It is the local area where a case may be tried.

Admission that breech causes irreparable harm. Granting injunctive relief means you agree to immediate injunction against you. Injunctive Relief

CONFLICTS, DISPUTES AND TERMINATION Termination for convenience (at will). Breech of contract. Notification of breech Time to cure default Notice of termination.

CONFLICTS, DISPUTES AND TERMINATION Consider alternative dispute resolution Avoiding binding arbitration Keep all other remedies under law available to either party

Pre-existing and future IP. Background IP Foreground IP Confidentiality clauses. Intellectual Property

What is an option? Licenses (Exclusive/ Non-exclusive). Material Transfer Agreements. Intellectual Property Checklist. Intellectual Property

Protect academic freedom. Sponsor’s right to review, not approve. Limited to: Patentable Material Proprietary Information Publications

Do not use the other part’s name without prior approval of the other party. Right to access information: Legal or regulatory needs Use of names

Force Majeure Acts of God and Nature

SPECIAL CONSIDERATIONS Are there Federal flow down terms and conditions ? FAR Clauses Debarment, Lobbying, Audit for A133 Subcontracting restrictions Are there required State terms and conditions ? Payment conditional upon availability of funds Timeliness for payment Travel reimbursement regulations Limitations on insurance and indemnification