Key contractual terms and preferred terms and conditions
Preferred Terms and Conditions
The content of a contract will vary and will depend 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 College will always seek to achieve the best possible terms in a contract. Faculty research services teams provide support on contracting and will advise and ensure consistency of proposals with the College's preferred terms and conditions. The College has delegated authorities to specific individuals when approval is required for a contract that is outside the preferred terms and conditions.
A detailed description of the work is essential in a contract. The parties to 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.
The key elements are described below.
Key contractual terms
The price represents what the funder is willing to pay and what the College is 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 College’s Costing and Pricing Policy ROP-01 [pdf] and Faculty pricing policies.
The proposed project price should not be disclosed to the funder without due 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, pricing and InfoEd section.
College’s preferred payment position is advance payment on a quarterly basis.
Confidentiality is a legal principle that governs secrecy between parties. This is particularly important where information, knowledge or research results passed to another party need to be held in confidence and not misused. Terms of confidentiality vary. The core consideration should be that the arrangement is reciprocal. The period of time required to maintain something as confidential should not exceed five years as any longer is difficult to manage.
Dissemination of information is a vital part of academic research, but care should be taken where this involves disclosure of confidential information. Once information has been publicly disclosed (e.g. by conversation, email, seminars, poster presentations or interviews) it is no longer considered confidential, unless that disclosure was under an obligation of confidence.
In some cases, a funder may wish for results to remain confidential forever. This imposes considerably greater limitations than preventing publication or withholding rights to the Intellectual Property as researchers cannot discuss or refer to the results 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.
Academics should expect the right to publish all the results of their research, including where relevant, the submission of a student thesis for examination (this is counted as public disclosure), without delay or hindrance. Funders may wish to delay publication, typically to assess Intellectual Property opportunities or to delete information that may be considered proprietary by 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 Principal Investigator must consider how far these are compatible with responsible publication and the College’s educational mission.
Intellectual Property protection
The College should expect to be able to continue building on the results and Intellectual Property (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 College to retain full rights to the results of its research while allowing its sponsors as much commercial advantage as possible. Any commercial advantage will be subject to a reasonable revenue return to College. College has a responsibility to maximise the benefits arising from its research, and ensure that it can exercise an appropriate degree of control over the use of such 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. On this basis, College’s preferred starting position in any research contract is:
- Imperial should retain ownership of IP arising from the research it conducts
- The funder is granted an internal, non-exclusive, research and development licence (but not for the purposes of commercial exploitation)
Commercial licence terms should not be agreed in a research contract. This may constitute a trading activity and affect the College’s status as an exempt charity.
Further information is available in the Intellectual Property pages
Indemnity and Liability
This is a complex area and what may be included in a contract, and why, requires case-by-case assessment.
A contract commonly includes clauses to confirm that:
- the results of research by definition cannot be guaranteed
- individual researchers and the College cannot be held liable for the sponsor's use of the results of research
- individual researchers and the College are not responsible for any indirect or consequential loss arising from the research
- there is a financial cap on the College's liability
It may be appropriate to negotiate additional limits on the College’s liability depending on the project.
Contracts which include any of the following risks will be referred to the Insurance Manager for approval:
- Contracts where staff or students will be working on offshore rigs or platforms
- Radiation or nuclear contamination or assembley
- Punitive, exemplary or liquidated damages (especially relevant to United States law)
- Human Clinical studies involving children under 5, pregnant women or over 5000 participants per site
- Human Clinical studies being conducted overseas
NB Clinical Studies at overseas sites sometimes require a local Insurance Policy.
The following terms on a contract will also require a referral to the Insurance Manager:
- Terms which require the College to name a beneficiary on its Insurance Policy
- Terms which include a 'hold harmless' clause, whether reciprocal or not, or a mutual indemnity or terms which waive subrogration rights.
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 College negotiates to ensure that the sponsor cannot withdraw funding without reasonable cause or notice. A contract should contain a mutual right to terminate the contract, with a notice period of no less than three months to be given and agreement to pay all costs incurred and committed up to date of termination.
The College should not agree to provide any specific warranties other than that the College is able to enter into and be bound by the terms of the 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 use of the results will be entirely the responsibility of the user.
Law and jurisdiction
English law and jurisdiction is the preferred position of the College. This refers to the interpretation of the contract and jurisdiction of courts in its enforcement. The acceptance of another law and jurisdiction may affect the cover provided by College insurance. There may also be additional costs involved should specialist professional or legal advice be required.