AGREEMENT ON INDUSTRIAL PHD

Transcription

1 AGREEMENT ON INDUSTRIAL PHD BETWEEN UNIVERSITI SAINS MALAYSIA AND ABC

2 AGREEMENT ON INDUSTRIAL PHD THIS AGREEMENT ON INDUSTRIAL PHD is made this day of, 20 (hereinafter referred to as Agreement ); BETWEEN UNIVERSITI SAINS MALAYSIA, a public institution of higher learning established under the Universities and University Colleges Act 1971 which for the purpose of this Agreement is represented by its Institute of Post-Graduate Studies and having its main campus at USM, Pulau Pinang, Malaysia (hereinafter referred to as USM ) of the first part; AND ABC (Company No......), a company incorporated under the Malaysian Companies Act 1965 and having its principal place of business at... (hereinafter referred to as the Company ) of the second part. (USM and the Company shall hereinafter be collectively referred to as Parties and individually as Party, where the context so requires) WHEREAS A. USM is Malaysia s premier research university which strives to enhance and strengthen its educational programs and has taken various initiatives to complement its educational excellence. With its research and teaching facilities, experience, and a multi-disciplinary team of experts from among its staff members, USM has entered into various collaborative arrangements with other parties in its effort to enhance its research contents and strengthen its industrial networking. B. The Company is a company involved in... C. The Ministry of Higher Education (hereinafter referred to as MOHE ) has introduced MyBrain 15 initiative under the National Institution of Higher Learning Strategic Plan Legal Office Universiti Sains Malaysia ~ PP9 Page 1

3 to create highly educated workforce as catalyst for research and innovation. Programs under MyBranin 15 include Industrial PhD which is opened for participation by employees in private sectors. USM is a recognised institute of higher learning for the Industrial PhD program. D. The Company is desirous of enrolling its employee, [ name of student ] [NRIC:... ] (hereinafter referred to as Student ) to register as a student of USM and pursue the PhD studies in [... ] and to carry out fundamental research on [... ] and any other research to be mutually agreed upon by the Parties. E. The Company agrees that the Student shall be registered as a full time student at USM and shall be subject to all rules and regulation of USM as well as the guidelines and/or policy on the Industrial PhD program as set by MOHE, and any amendments thereto as decided by MOHE from time to time. F. USM agrees to accept the Student as a full time student of USM and for the purpose of the Project (as hereinafter defined), USM shall nominate a suitable lecturer to supervise the Student. NOW THEREFORE, THE COMPANY AND USM HEREBY AGREE AS FOLLOWS: Clause 1 Definitions and Interpretations 1.1 In this Agreement, unless the context otherwise requires, the following terms shall have the following meanings: Confidential Information means any and all technical and non-technical information including patent, copyright, trade secret, know-how and proprietary information, techniques, sketches, drawings, diagrams, methods, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to a technology or invention, and includes, Legal Office Universiti Sains Malaysia ~ PP9 Page 2

4 without limitation, its respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing manufacturing, customer list, business forecasts, sales and merchandising and marketing plans and information designated in writing to be confidential or by its nature intended to be for the sole knowledge of the receiving party or if orally given in the circumstances of confidence or confirmed promptly in writing as having been disclosed as confidential or proprietary for the Purpose; that is conveyed by the disclosing party to the receiving party, in written, oral, digital, magnetic, photographic and/or whatsoever forms. Company s Property Intellectual means pre-existing and/or background Intellectual Property owned or developed by the Company, or its parent or its related companies worldwide, with no facilities, contribution, involvement or support by USM as to its development and any Intellectual Property developed outside the scope of this Agreement. Intellectual Property means: (a) Inventions; manner, method or process of manufacture; method or principle of construction; or design; plan, drawing or design; or scientific, technical or engineering information or document; (b) Improvement, modification or development of any of the foregoing; (c) Patent, application for a patent, right to apply for a patent or similar rights for or in respect of any intellectual property referred to in paragraph (a) Legal Office Universiti Sains Malaysia ~ PP9 Page 3

5 or (b); (d) Trade secret, know-how, confidential information or right of secrecy or confidentiality in respect of any information or document or other intellectual property referred to in paragraph (a) or (b); (e) Copyright or other rights in the nature of copyright, including the Project thesis, clauses, journal and conference papers, subsisting in any works or other subject matter referred to in paragraph (a) or (b); (f) Registered and unregistered trademark, registered design, application for registration of a design, right to apply for registration of a design or similar rights for or in respect of any work referred to in paragraph (a) or (b); (g) Any Intellectual Property in addition to the above which falls within the definition of intellectual property rights contained in Clause 2 of the World Intellectual Property Organisation Convention of July 1967; and (h) Any other rights arising from the thesis of the Project and other intellectual activities in the scientific, literary or artistic fields, Whether vested before or after the date of this Agreement and whether existing in Malaysia or otherwise and for the duration of the rights. New Intellectual Property means Intellectual Property conceived, improved or reduced to practice or writing by the Student during the Project, including the Project thesis, journal, publication etc.. Project means the Industrial PhD program of joint research Legal Office Universiti Sains Malaysia ~ PP9 Page 4

6 activities between USM and the Company on the subject field as agreed upon by the Parties, subject always to the guidelines and/or policy as set up by MOHE. Project Period means the period of studies of the Student in accordance to the Letter of Offer issued by USM or any period as may be mutually agreed upon by the Parties herein for the Project. USM s Property Intellectual means pre-existing and/or background Intellectual Property owned or developed by USM with no facilities, contribution, involvement or support by the Company or the Student as to its development and any Intellectual Property developed outside the scope of this Agreement. 1.2 Any monetary references shall mean the Malaysian currency. Clause 2 Research Project Work 2.1 The Student shall commence the Project upon execution of this Agreement and shall use reasonable efforts to perform such Project substantially in accordance with the terms and conditions of this Agreement. The Company and USM may at any time change the scope of the Project by mutual written agreement. 2.2 In the event that the Student become unable or unwilling to continue the Project, and a mutually acceptable substitute is not available, USM shall have the absolute discretion and option to terminate the Project. 2.3 The supervisors/professors of USM involved in the Project shall provide academic and research advice and shall supervise the Student throughout the Project Period. 2.4 USM has the absolute right to register the Student for the Project subject always to the admission requirements and criterias of USM. Legal Office Universiti Sains Malaysia ~ PP9 Page 5

7 2.5 USM and the Company shall plan and approve the Student s complete Project s programme, and USM shall award the PhD degree if the requirements for the Project have been met in accordance to USM rules and regulations. The Project shall be completed in accordance with the rules for Industrial PhD students as applicable from time to time, including MOHE s guidelines and/or policy for the Industrial PhD program. Clause 3 Funding 3.1 USM shall be provided with financial assistance by the Company and MOHE in conducting the Project research on the areas mentioned herein (hereinafter referred to as the Funding ). 3.2 The Funding from MOHE may only cover the following costs: i. supervision costs (Kos Penyeliaan) ii. studies costs (Kos Pengajian) iii. Training Supervision costs (Kos Latihan Penyeliaan) iv. Panel Exam costs (Kos Pemeriksaan Panel) v. Conferment of degrees (Penganugerahan Ijazah) subject always that the maximum amount of the Funding from MOHE for the costs of items i-v above shall not exceed RM50, The Company shall provide the Funding to the Student as agreed between them and USM shall not interfere with such arrangement between the Company and the Student, unless otherwise agreed between the parties. 3.4 The Company hereby undertakes that it shall pay for the part of the costs in the estimated sum of RM[ ]for the Project education and material not covered by MOHE. Clause 4 Intellectual Property 4.1 Nothing contained in this Agreement shall be deemed to grant either Party either directly or indirectly or by implication, estoppels or otherwise any license under any Legal Office Universiti Sains Malaysia ~ PP9 Page 6

8 patents, patent applications or other proprietary interest over any Intellectual Property of either Party. 4.2 All rights over any New Intellectual Property by the Student arising from the Project shall be vested in USM in accordance to USM Intellectual Property Policy. 4.3 All rights, titles and interests over USM s Intellectual Property used to produce any product which forms the New Intellectual Property, shall continue to belong to USM; and the Company shall not have any claim on them. 4.4 Where it is established that any USM s Intellectual Property is a requirement for the New Intellectual Property, adequate remuneration entitled to USM for such usage of USM s Intellectual Property shall first be agreed by the Company and USM in writing. 4.5 The Company agrees that USM shall reserve a royalty-free, non-exclusive licence to use the Company s Intellectual Property and/or the results of the Project internally, whether patented or registered by the Company, in connection with USM s research and teaching subject to restrictions on publication and confidentiality as set out respectively, for the purpose of completion of the Project. Clause 5 Rights to Publish 5.1 The data and information accruing from this Agreement may be published by USM in accordance with USM Intellectual Property Policy respecting the same. The Company may be provided with a copy of any proposed publication at least twentyone (21) days prior to submission for review of patentable items or items deemed confidential as defined in clause 6 herein. The purpose of this clause is to further protect the rights of USM and the Company in the protection of any contemplated publication concerning details of an invention or the Company s Confidential Information as defined in the clause 6 herein 5.2 If deemed reasonably necessary by USM and/or the Company to protect such interests, any contemplated publication concerning details of an invention, etc, may be withheld until a patent application is filed or other appropriate steps to protect the commercial value have been contemplated. Legal Office Universiti Sains Malaysia ~ PP9 Page 7

9 5.3 Notwithstanding clause 5.2 above, in no event shall any publication be delayed exceeding twelve (12) months from the date the proposed publication is provided to the Company, but such publication shall not include the Company s Confidential Information as reasonably determined by the Company and communicated to USM within the twenty-one (21) day review period referenced in clause 5.1 above. 5.3 In all publications arising out of this Agreement, USM and/or the Student may acknowledge the contribution and technical support of the Company. Clause 6 Confidentiality 6.1 Either Party shall not disclose or cause to be disclosed any Confidential Information revealed to the other Party without the prior written approval of the disclosing Party. 6.2 USM shall also inform the Student of the terms and conditions of this Agreement and the Student shall automatically be subjected to all USM rules and regulation as a full time student of USM, and of the obligations to maintain the Company s and USM s Confidential Information in confidence. Likewise, the Company shall also inform its personnel of the terms and conditions of this Agreement and of their obligations to maintain the Company s and USM s Confidential Information in confidence. 6.3 Each Party shall hold in confidence all Confidential Information disclosed by the other Party in writing and marked confidential under this Agreement except where such: i. Confidential Information which at the time of disclosure is in the public domain; ii. Confidential Information which after disclosure is published or otherwise becomes part of the public domain through no fault of the receiving Party; iii. Confidential Information which was in the possession of the receiving Party at the time of disclosure and was not acquired under an obligation of confidence to the disclosing Party with respect thereto; and Legal Office Universiti Sains Malaysia ~ PP9 Page 8

10 iv. Confidential Information which is disclosed subsequently to the receiving Party by another party and not acquired by such third party under an obligation of confidence to the disclosing party with respect thereto. Clause 7 Term and Termination 7.1 This Agreement shall become effective on the date first above written regardless of the diverse dates the Parties may have signed this Agreement and shall continue in effect until the end of the Project Period. 7.2 In the event that any Party hereto commits any breach or default in any of the terms or conditions of this Agreement, and fail to remedy such default or breach within thirty (30) days after receipt of a written notice thereof from the non-defaulting Party, the non-defaulting Party may, at its option and in addition to any other remedies which it may have at law or in equity, terminate this Agreement by giving a written notice of termination to the defaulting Party, and such termination shall be effective as of the date of receipt of such notice PROVIDED ALWAYS that any termination arising from this clause shall not prejudice the right of the Student to complete his/her Project studies. Clause 8 - Assignment Neither Party shall be entitled to assign this Agreement, in whole or in part, or any of its rights and obligations under this Agreement without the prior written consent of the other Party. Clause 9 - Relationship Of The Parties Nothing in this Agreement shall be construed as establishing or creating a partnership or a relationship of master and servant between any of the Parties hereto or as constituting any party as an agent or representative of the other Party for any purpose or in any manner whatsoever. Legal Office Universiti Sains Malaysia ~ PP9 Page 9

11 Clause 10 Entire Agreement This Agreement shall constitute the entire agreement between the Parties hereto with respect to the Project and shall supersede all prior or contemporaneous representations, agreements and promises, written or oral, between the Parties with respect to the Project. Clause 11 - Modifications This Agreement shall not be amended, altered, changed or otherwise modified without the mutual consent of the Parties hereto and such amendments, alterations, changes or modifications shall be made in writing and signed by the Parties hereto. Clause 12 Notices Any notice or communication between the Parties shall be delivered to the address, or sent to the facsimile number or ed to the following: For USM: Address Telephone no. Facsimile no. Contact person address [ School address ] [ to be nominated by the School ] For ABC: Address Telephone no. Facsimile no. Contact person address Legal Office Universiti Sains Malaysia ~ PP9 Page 10

12 Clause 13 - Severance Notwithstanding that any provision of this Agreement may prove to be illegal or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect. Clause 14- Legal Costs Each Party shall bear its own legal costs in the preparation and execution of this Agreement. Clause 15 Governing Law This Agreement shall be governed and construed in accordance with the laws of Malaysia. Clause 16 Successors Bound This Agreement shall be binding on the Parties and their respective successor-in-title and permitted assigns. Clause 17 Name, Official Emblem and Logo 17.1 Neither Party shall use, nor permit any person or entity to use the name, acronym, official emblem, logo, trade mark (or any variation thereof) or other Intellectual Property (hereinafter referred to as Brand Materials ) that is/are identified with or belongs to the other Party on any publication, document, paper, audio or visual presentation, or for publicity purposes Any use of the Brand Materials for the purposes stated in clause 17.1 above shall first obtain the written consent of the other Party and shall comply with all reasonable instructions as to the use of the other party s Brand Materials. Legal Office Universiti Sains Malaysia ~ PP9 Page 11

13 Clause 18 - E-Communication and Signature The Parties hereby consent to electronic communication and electronic signatures being equal to signatures inked on paper. The Parties acknowledge and agree that electronic communication is an acceptable method of communicating information from a Party to the other party without having to communicate the same on paper. Any communication and subsequent electronic signature that has been sent or signed in the past, present, or future between the Parties will hold the same force and effect as a document signed and inked on paper. (the remainder of this page is intentionally left blank) Legal Office Universiti Sains Malaysia ~ PP9 Page 12

14 IN WITNESS WHEREOF the Parties hereto have hereunto set their hands the day and year first abovewritten. SIGNED BY for and on behalf of UNIVERSITI SAINS MALAYSIA SIGNED BY for and on behalf of ABC SDN BHD... PROFESSOR DATO DR. OMAR OSMAN Vice-Chancellor... [ name & designation ] In the presence of: In the presence of: [name & designation ] [name & designation ] Legal Office Universiti Sains Malaysia ~ PP9 Page 13