CRANFIELD UNIVERSITY, as a charitable foundation, is obliged to adopt conditions of contract which limit its legal liabilities and reflect its charitable status when providing, as one of its primary purposes, research and development services.
2.1 Background Intellectual Property: shall mean Intellectual Property relevant to the Project which is in the possession of a Party prior to the commencement of the Project or generated after commencement of the Project but independent of the Project.
2.2 Client: shall mean the person, or legal entity, for whom Cranfield is to undertake the Project.
2.3 Contract: shall mean the Contract between Cranfield and the Client established by acceptance by the Client of the Proposal and these conditions.
2.4 Contract Price: shall mean the total amount payable to Cranfield by the Client for undertaking the Project as specified in the Proposal or as agreed separately in writing.
2.5 Cranfield: shall mean Cranfield University incorporated by Royal Charter number RC000151.
2.6 Foreground Intellectual Property: shall mean Intellectual Property arising from or developed in the course of the Project by either of the Parties.
2.7 Intellectual Property: shall mean intellectual property which shall include but not be limited to inventions and discoveries (whether patentable or not) Patents, petty patents and applications thereof, registered designs and applications thereof design rights, registered and unregistered trade marks and service marks, specifications, drawings, plans, maps, trade secrets and confidential information, copyright material including computer software and databases, technical know-how and other information .
2.8 Parties/Party: the Parties shall mean both Cranfield and the Client, and Party shall mean either Cranfield or the Client.
2.9 Project: shall mean the work to be undertaken in accordance with the Proposal.
2.10 Proposal: shall mean the description of work or services to be undertaken by Cranfield as set out in a document submitted to the Client.
3. ACCEPTANCE OF OFFER
3.1 These conditions and the Proposal constitute an offer, and if duly accepted by the Client in writing shall constitute a Contract between the Parties No other terms and conditions shall be accepted unless agreed in writing by both Parties and no representation whatsoever whether oral or written made prior to the date of the Contract shall be deemed to be incorporated in the Contract.
3.2 The offer shall remain open for a period of ninety (90) days from the date on which it is posted unless prior to acceptance the Client has been specifically notified in writing that the offer has been withdrawn.
If there shall be any apparent inconsistency between the Proposal and these Conditions, the Proposal shall prevail.
The Project to be undertaken by Cranfield shall be as specified in the Proposal, but:-
5.1 where applicable any time limits, performance specification and Project results are a best estimate only;
5.2 although Cranfield shall at all times use all reasonable endeavours to ensure accuracy, and to achieve the objectives of the Project, Cranfield's achievement depends, among other things, on the effective co-operation of the Client's staff and on the information submitted to Cranfield by them. In consequence all reports and recommendations are submitted on the basis that:-
(i) there is no liability to any person other than the Client;
(ii) the Client acknowledges that no statement in any report or letter, other than the Proposal and any correspondence referred to in it, is to be deemed in any circumstances to be or give rise to a representation, undertaking, warranty or contractual condition.
6.1 All information which a Party ("the Receiving Party") receives from the other Party ("the Disclosing Party") which the Disclosing Party specifically designates in writing to be confidential prior to the disclosure whether in tangible or visible form or whether communicated orally shall be treated by the Receiving Party as confidential and the property of the Disclosing Party, and such confidential information shall not be used by the Receiving Party for any purpose other than the performance of this Contract without the consent of the Disclosing Party.
6.2 This obligation of confidentiality shall not apply to any information:-
(i) in the public domain at the time it was disclosed or which thereafter enters the public domain without breach of the terms of this Contract
(ii) already known by the Receiving Party at the time of disclosure by the Disclosing Party
(iii) which becomes known from a source other than the Disclosing Party without breach of the terms of this Contract
(iv) independently developed by an employee of the Receiving Party to whom no disclosure of any such disclosed information has been made
(v) which is required to be disclosed by Court Order but only to the extent required by the Order on condition that the Disclosing Party is informed promptly of the Court Order.
6.3 Upon completion of the Project or earlier termination of this Contract, or at any time upon request, the Parties shall promptly return all documents containing confidential information, including all information reduced to writing which was originally disclosed orally, and all copies of the same in its possession.
6.4 Contents of letters, reports, telephone calls or consultations forming part of or in connection with the Project, may not be published in whole or in part without the prior agreement of both Parties.
6.5 The obligations of confidentiality contained in this Clause shall expire five (5) years after the date of completion of the Project or earlier termination of this Contract.
7. TERMINATION OF CONTRACT
7.1 Either Party may without prejudice to any other rights and remedies in respect of any breach or non-observance of any of the covenants or obligations herein contained by notice in writing to the other Party terminate the Contract forthwith if:-
(i) the other Party shall commit any material breach of any of the terms (including without limitation terms concerning the time for payment of the Contract Price) of this or any other contract between them and on its part to be observed or performed PROVIDED if such breach is remediable that notice thereof has previously been given and the same has not been remedied within twenty one (21) days thereafter;
(ii) if the other Party shall present a petition or have a petition presented by a creditor for its winding-up or shall convene a meeting to pass a resolution for voluntary winding-up or shall enter into any liquidation (other than for the purposes of a bona fide reconstructions or amalgamation) or shall call a meeting of its creditors to seek the protection of the court from action by its creditors or any insolvency process or shall have a receiver or any administrative receiver of all or any of its undertakings or assets or an administrator appointed, or shall be deemed by the applicable statutory provisions to be unable to pay its debts or shall suffer any process equivalent or analogous to any of the aforesaid under any jurisdiction;
(iii) if the other Party, being an individual, shall die, or present or have presented against him a petition for a bankruptcy order, or if an effective interim order shall be obtained in respect of him or a voluntary arrangement in respect of him is approved;
(iv) if the other Party permits any judgement against it to remain unsatisfied for fourteen (14) days.
7.2 Further, Cranfield may without prejudice to any other rights and remedies it may have by notice in writing to the Client terminate the Contract forthwith if:-
(i) any equipment or article supplied by the Client for the purposes of the Project is (in the bona fide opinion of Cranfield) unsafe or poses unacceptable risks of injury or damage to persons or property;
(ii) the Project cannot be achieved owing to the state of any equipment or article supplied by the Client for trials or test;
7.3 This Contract may be terminated by either Party giving the other Party ninety (90) days prior written notice. Any termination of the Contract shall be without prejudice to any rights which may have accrued to either Party prior to such termination. In the event of such termination, the Client shall pay to Cranfield all fair and reasonable fees costs and expenses incurred in respect of work performed on the Project up to the effective date of termination on a quantum meruit basis plus all commitments properly and necessarily already entered into at the date of receipt of notice to terminate or suspend the Contract or arising as a direct consequence of such notice, provided that such costs and expenses and commitments when added to the amount of any payments already made to Cranfield shall not exceed the agreed Contract Price plus Value Added Tax (VAT) thereon if applicable.
8. FORCE MAJEURE
Neither Party will be liable to the other for any delay in or failure to perform its obligations (other than payment of money) as a result of any cause beyond its reasonable control, including but not limited to an Act of God, decree of Government, fire, flood, explosion, sabotage, riot, rebellion, war, civil war, armed conflict, terrorism, nuclear, chemical or biological contamination, disease, quarantine, official strike or similar official industrial action or dispute, which directly causes a Party to be unable to comply with all or a material part of its obligations under this Contract. If such delay or failure continues for at least sixty (60) days, either Party shall be entitled to terminate the Contract by notice in writing.
9.1 In consideration of Cranfield undertaking the Project for the Client, the Client agrees to pay Cranfield the fees and expenses in the amounts and at the times specified in the Proposal together with Value Added Tax (VAT) where applicable.
9.2 Unless otherwise provided in the Proposal payment shall be monthly in arrears in respect of each month for which work has been undertaken by Cranfield. Payment shall be due thirty days after demand or invoice and thereafter any sum unpaid shall bear interest at the rate of four percent (4%) per annum above National Westminster Bank plc base lending rate for the time being in force until payment is made in full both before and after any relevant judgement. Without prejudice to any other rights of Cranfield if the Client shall fail to make payment in full in accordance with this Clause then Cranfield shall be entitled after giving the Client seven (7) days prior written notice of its intention to terminate this Contract or any other contract with the Client in accordance with Clause 7 and to claim damages from the Client for breach but without thereby releasing the Client from its obligations to Cranfield under this or any other contract.
9.3 If this Contract is exempt from Value Added Tax (VAT) but HM Revenue and Customs subsequently determine that VAT is payable on the supply of the services provided under this Contract then the Client agrees to pay to Cranfield any such VAT upon receipt of a VAT invoice issued by Cranfield.
10. INTELLECTUAL PROPERTY AND USER RIGHTS
10.1 For the avoidance of doubt nothing in this Contract shall be construed as affecting the ownership of Background Intellectual Property.
10.2 Each Party shall grant the other Party a licence to Background Intellectual Property solely for undertaking the performance of the Project but for no other purpose.
10.3 All rights to Foreground Intellectual Property arising from the Project shall be co-owned by Cranfield and the Client and the rights of each of the Parties as co-owners shall be as set out herein.
10.4 If the Client and Cranfield agree that a patent application or application for other Intellectual Property protection be filed, Cranfield shall promptly prepare, file and prosecute such UK and/or other application in the joint names of the Client and Cranfield. Prior to such application or other such Foreground Intellectual Property protection being filed, the Parties shall agree how the cost(s) of such application and/or filing shall be borne.
10.5 Each of the Parties may exploit the Foreground Intellectual Property for the purpose of its own business and for this purpose the expression "its own business" shall include business of any wholly owned subsidiary of either of the Parties as defined by Section 736 of the Companies Act 1985 and in the case of Cranfield and the Client shall include research and development work relating to the invention without limitation.
10.6 Prior to embarking upon exploitation of the Foreground Intellectual Property, the Client and Cranfield shall enter into an Exploitation Agreement to cover access to Background Intellectual Property, the granting of licences to third parties and royalties and such other terms as the Parties deem necessary.
10.7 If within a period of eighteen (18) months from the commencement of this Contract an Exploitation Agreement has not been concluded, then at the request of Cranfield the Client agrees to assign to Cranfield all rights and interest relating to the Foreground Intellectual Property in exchange for a consideration which shall take account of reasonable costs and expenditure incurred relating to the protection of the Foreground Intellectual Property.
10.8 If at any time the Client does not intend to maintain Foreground Intellectual Property protection if it is granted then it shall immediately notify Cranfield in writing to this effect.
10.9 In the event that there shall be appointed a liquidator or receiver in respect of the affairs of the Client or if the Client shall enter into an arrangement with its creditors or otherwise howsoever become insolvent then upon demand it shall assign to Cranfield all rights and interest relating to the Foreground Intellectual Property.
11.1 The Parties expressly agree and acknowledge that it is fair and reasonable for Cranfield as an educational charity to restrict its liability to the Client in the manner set out in this Clause 11.
11.2 While Cranfield will use reasonable endeavours to ensure the accuracy and completeness of the work performed and of any information provided or opinions expressed in connection with the Project, it does not give any express or implied representations and this Contract does not contain any express or implied terms, warranties or conditions as to:-
(i) the quality or fitness for a particular purpose of any goods produced, sold or supplied pursuant to the Project (or of any design, workmanship, materials or parts used in connection therewith) or as to their correspondence with any description or sample; or
(ii) the accuracy, sufficiency or completeness of any work performed, information provided or advice given pursuant to, in connection with or as a result of, the Project.
11.3 Cranfield's sole liability shall be for direct loss or damage incurred or suffered by the Client or death or injury to any of the Client's employees, servants or agents as a result of negligence on the part of Cranfield or its employees, servants or agents in the performance of its obligations under this Contract and which liability is not otherwise excluded or restricted by this Contract, but such liability shall in no circumstances exceed the sum of £1,000,000 in the aggregate in respect of all such losses, save that there shall be no limit of liability in respect of death or personal injury resulting from the negligence of Cranfield its employees, servants or agents.
11.4 Nothing in this Clause shall be taken to exclude or restrict any liability of Cranfield for death or personal injury resulting from the negligence of Cranfield or its employees, servants or agents or to exclude or restrict any other liability of Cranfield which cannot by law be excluded or restricted.
11.5 In no event shall Cranfield be liable for any of the following losses or damage (whether such losses or damage are foreseen, foreseeable, known or otherwise and whether or not the Client is advised of the possibility of loss, liability damage or expense):
11.5.1 loss of revenue;
11.5.2 loss of actual or anticipated profits (including for loss of profits on contracts);
11.5.3 loss of the use of money;
11.5.4 loss of anticipated savings;
11.5.5 loss of business;
11.5.6 loss of operating time or loss of use;
11.5.7 loss of opportunity;
11.5.8 loss of goodwill;
11.5.9 loss of reputation;
11.5.10 loss of, damage to or corruption of data; or
11.5.11 any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in Clauses 11.5.1 to 11.5.10).
11.6 The Client undertakes to make no claim in connection with this Contract or its subject matter against any student or any employee, agent or appointee of Cranfield (apart from claims based on fraud or wilful misconduct). This undertaking is intended to give protection to individual personnel; it does not prejudice any right which the Client might have to claim against Cranfield.
The Client agrees to indemnify and keep indemnified Cranfield and its employees servants and agents from and against any and all liabilities, claims, demands, loss, costs, damages or expenses including legal fees resulting from, in connection with, or arising out of any claim asserted against Cranfield relating to or associated with:-
12.1 the Client's use and/or any third party to whom the Client has passed information or results use of any such information or results supplied by Cranfield; or
12.2 use by the Client and/or any third party of any product, process or system created by the Client or the third party which may be based upon the results of the Project; or
12.3 use by Cranfield of any Background Intellectual Property supplied by the Client.
13. RELATIONSHIP OF THE PARTIES
The relationship of the Parties is exclusively that of independent contractors and nothing contained in this Contract shall be construed as creating any partnership, consortium, joint venture, agency or any other legal relationship.
Title in any report, equipment, software or any other deliverable agreed under this Contract shall not pass to the Client until payment in full has been received by Cranfield of the Contract Price.
15. DATA PROTECTION
15.1 In the event that a Party receives personal data as defined by the Data Protection Act 1998 (“the Act”) from the other Party, the receiving Party warrants that it will comply with the Act and deal with any data in order to complete its obligations under this Contract and for no other purpose
15.2 Each Party shall accept full legal liability for any breach of the Act which renders the other Party liable for loss, damage, costs and any claims.
15.3 In order to fulfil its obligations under the Act each Party shall have in place regulations to ensure:
(i) Full compliance with the Act.
(ii) Specific compliance with the Seventh Data Protection Principle concerning security of personal data.
(iii) The reliability and integrity of all employees involved in processing any personal data of the other Party.
15.4 Each Party shall take reasonable steps to ensure that any sub-contractor, consultant, agent or other third party shall comply with this Clause.
15.5 Each Party will allow the other Party reasonable access to examine the systems and regulations in order to ensure compliance with the provisions of the Act.
16. EXPORT CONTROL
16.1 The Parties hereto shall comply with all laws and regulations in force from time to time, affecting the export, or re-export to or from the United Kingdom of Great Britain and Northern Ireland of goods or services including technical information.
16.2 The Parties shall use their best endeavours to ensure that no export, or re-export, whether directly or indirectly shall be sent to any third party who a Party knows or has any reason to know will illicitly use any item or information directly or indirectly in any nuclear activity, the design or development of missiles, or missile technology, bacteriological or chemical weapons.
Neither Party may assign, transfer or otherwise dispose of this Contract in whole or in part or any interest therein without the prior written consent of the other Party. However this shall not restrict the right of Cranfield to employ or appoint sub-contractors provided such sub-contractors are bound by a confidentiality obligation equivalent to that contained in Clause 6 herein and also have an obligation to assign any Intellectual Property to Cranfield.
18. PUBLICATION AND PUBLICITY
18.1 The Client recognises that in accordance with normal academic practice, Cranfield may wish to publish some or all of the results arising out of the Project. In this event, Cranfield shall seek the written agreement of the Client to the manuscript proposed for publication in good time before publication or other disclosure. Such written permission shall not be unreasonably withheld longer than is necessary to protect commercial interests and any likely delay shall be notified promptly to Cranfield.
18.2 Where the Project involves work which, with the prior knowledge of the Client will be undertaken by a Cranfield student, the Client agrees that the student will be able to publish a thesis based on the Project in accordance with Cranfield’s Regulations.
18.3 The Client agrees that it shall not, without prior written consent of Cranfield, advertise or publicly utilise the Cranfield University name or any trademark associated therewith, in conjunction with the Project or any results thereof.
Any notice which may be required to be given by either Party under this Contract shall be deemed to have been duly given if left at or sent by recorded delivery post or facsimile transmission (confirming the same by post) if to Cranfield sent to Cranfield University, Vice-Chancellor's Office, Cranfield, Bedfordshire, MK43 0AL, and if to the Client to the Client's last known place of business or its registered office or to such other address as the Client shall have previously designated in writing.
20. ENTIRE AGREEMENT
This Contract represents the entire agreement between the Parties relating to the Project and shall supersede all representations, agreements, statements and understandings made prior to the date of this Contract whether oral or in writing other than those representations, agreements, statements and understandings which have been expressly incorporated into this Contract.
21. VARIATIONS TO CONTRACT
No variation or modification expressed to be an amendment to this Contract shall have any effect unless made in writing and signed by a duly authorised representative of each Party.
22. HEADINGS AND SEVERABILITY
The Clause headings are for convenience only and shall not affect their interpretation. If any part of this Contract shall be held to be unenforceable to any extent, the remainder of the Contract shall nevertheless remain in full force and effect.
Failure to terminate this Contract following a breach or other failure to comply shall not be deemed to be a waiver of a Party's defences rights or causes of action arising from such or any future breach or non-compliance. Nor shall failure on the part of either Party at the time or from time to time to enforce or to require the strict adherence and performance of any of the terms and conditions affect or impair its right to enforce such terms or conditions in any way.
The provisions of the following Clauses shall remain binding upon the Parties after the expiry or any termination under this Contract, 6, 9, 10, 11, 12, 14, 15, 16, 18, 25, 26 and 27.
25. RIGHTS OF THIRD PARTIES
The Contracts (Rights of Third Parties) Act 1999 shall not apply to these terms and conditions and nothing in these terms and conditions confers or purports to confer on any third party any benefit or any right to enforce any of these terms or conditions.
26. FREEDOM OF INFORMATION ACT
The Client acknowledges that Cranfield is subject to the Freedom of Information Act 2000 and undertakes to assist and co-operate with Cranfield to enable Cranfield to comply with any information disclosure obligations.
27. GOVERNING LAW
This Contract shall be governed by and construed in accordance with the Law of England and Wales and shall be subject to the exclusive jurisdiction of the Courts of England.