Academic Research Cooperation Agreement

Cooperation Agreement Between FAPESP and The Regents of the University of Michigan (U-M)

ACADEMIC RESEARCH COOPERATION AGREEMENT

THIS ACADEMIC RESEARCH COOPERATION AGREEMENT is made on the 25th day of September, 2012

BETWEEN:

FUNDAÇÃO DE AMPARO À PESQUISA DO ESTADO DE SÃO PAULO (FAPESP) whose principal place of business is at Rua Pio XI, 1500, Alto da Lapa – CEP 05468-901, São Paulo, SP, Brazil (“FAPESP”)

and

the Regents of the University of MICHIGAN (U-M) located in Ann Arbor, Michigan, The United States of America.

BACKGROUND

Both Parties agree on the importance of cooperation in all areas of knowledge and each desire to allocate funds for research projects involving researchers from the U-M and those covered by FAPESP in the State of São Paulo, Brazil on the terms contained in this Agreement.

AGREED AS FOLLOWS:

1. DEFINITIONS

1.1 The following words and expressions shall have the meanings set out below:

“Commencement Date” means the date of this Agreement;

“Intellectual Property” means any intellectual property rights of any description including, but not limited to, patents, copyrights, registered and unregistered design rights, know-how, database rights, registered and unregistered trademarks, service marks, logos or marks of a similar nature, and any other rights in any invention, discovery or process, existing in any jurisdiction and all rights to apply for the same; “Joint Management Board” means the committee in charge of the management of the cooperation program;

“Researchers” means academic researchers employed by the U-M (in the case of U-M), and academic researchers based in the State of São Paulo, Brazil (in the case of FAPESP);

“Term” means the period of five (5) years from the Commencement Date of this Agreement. University of Michigan

1.2 Any reference in this Agreement to any statute or statutory provision shall be construed as including a reference to that statute or statutory provision as from time to time amended, modified, extended or reenacted.

2. COMMENCEMENT AND DURATION

2.1 This Agreement shall come into effect on the Commencement Date and shall continue in force for the Term unless terminated in accordance with Clause 7.

3. FUNDING OF RESEARCH PROJECTS

The Parties may each fund certain collaborative research projects proposed by their respective Researchers under the following conditions.

3.1 U-M shall establish a discretional pump-priming fund for the purposes of funding its Researchers under this Agreement.

3.2 FAPESP shall establish a discretional pump-priming fund for the purposes of funding its Researchers under this Agreement.

3.3 For the avoidance of doubt, this Agreement creates no obligation on either Party to fund any of the other Party’s Researchers.

3.4 In 2012 and 2014 each Party will issue a call inviting their respective Researchers to submit research proposals in any academic discipline to support a collaborative research project involving Researchers of the other Party. Each successful research project will be awarded up to US$ 10, 000.00 each year by each party for a maximum period of two (2) years.

3.5 The number of proposals to be funded each year shall be determined by agreement between the two parties. The funds will be granted only if both parties approve the proposal. Proposals receiving funds from the two parties shall not be precluded from receiving funds from other sources.

3.6 Each Party will be responsible for and establish its own policies for receiving, coordinating, administrating, reviewing, and assessing research proposals and disbursing funds under clause 3.4.

3.7 For the avoidance of doubt, the existence of this Agreement does not prevent or restrict either Party from entering into cooperation agreements with other institutions.

4. IMPLEMENTATION

4.1 To implement this Agreement, the Parties shall establish a Call for Research Proposals, in accordance with national (and State of Michigan, in the case of U-M, and State of São Paulo, in the case of FAPESP) legislation in each country of the Parties and their own budget availability.

4.2 The Parties will appoint two (2) representatives, one (1) from each institution, which will be responsible for drafting the Call for Research Proposals and for the continuation of this Agreement.

4.3 The representatives aforementioned shall monitor the submittal of projects from each Party and monitor the development and performance of the projects.

4.4 For the elaboration of the Call for Research Proposals, the Parties may provide, by separate written agreement, the most appropriate procedures including mechanisms such as: delegation meetings, workshops, correspondence and other procedures.

5. RESTRICTIONS ON BOTH PARTIES

5.1 During the course of this Agreement both Parties shall not:

5.1.1 use the other Party’s name or logo or marks, and/or the name of any of its Researchers without the prior written approval from that Party and/or the individual Researcher;

5.1.2 use advertising copy in relation to this Agreement without the prior written approval of both Parties;

5.1.3 delegate any duties or obligations arising under this Agreement to a third party other than may be expressly approved in writing by both Parties, such approval not unreasonably to be withheld; or

5.1.4 make a financial or legal commitment on behalf of the other Party.

6. COMPLIANCE WITH LAWS

6.1 FAPESP and U-M shall comply fully with all applicable local, state, and federal government and international laws, regulations and guidelines which are effective during the Term, including those governing health and safety, data protection and equal opportunities and matters such as race and gender equality, disability, age, religion and sexual orientation.

7. TERMINATION

7.1 Either Party may terminate this Agreement immediately by notice in any of the following circumstances if:

7.1.1 Either Party is in breach of its obligations under this Agreement and following written notice of such breach from the Party not in breach of the Agreement specifying the breach and requiring it to be remedied, the other Party fails to remedy the breach within a period of thirty (30) calendar days. This clause is valid so far as the breach may be remedied but nothing in this clause is intended to require a Party to serve notice of any breach before taking action in respect of it;

7.1.2 Either Party engages in any conduct prejudicial to the reputation of the other Party or its marketing and promotion generally;

7.1.3 Either Party may terminate this Agreement for no cause on giving the other Party not less than six (6) months’ notice in writing.

7.2 If this Agreement is terminated for any reason, then with effect from the date that the notice to terminate is served, no further projects shall be commenced. However, each Party will, where reasonable and possible to do so, continue to provide and allow completion of all research projects commenced before the date of such termination as if the Agreement had not been terminated.

8. FORCE MAJEURE

8.1 A Party shall not be liable for failure to perform its obligations under this Agreement, nor be liable to any claim for compensation or damage, nor be deemed to be in breach of this Agreement, if such failure arises from an occurrence or circumstances beyond the reasonable control of that Party, including, without limitation, war, terrorism, industrial disputes, fire, flood, tempest and national emergencies. Should a Party be so delayed, prevented or impeded, it shall promptly inform the other Party of the nature of the relevant cause and of the expected duration of the delay or impediment.

8.2 If a Party affected by such an occurrence causes a delay of three (3) months or more, and if such delay may reasonably be anticipated to continue, then the Parties shall discuss whether the continuation is viable or whether the Agreement should be terminated.

9. CONFIDENTIALITY

9.1 During the term of this Agreement and for a period of five (5) years thereafter, each Party will keep strictly confidential any information disclosed by the other Party which the disclosing Party identifies as confidential information (“Confidential Information”). The receiving Party will only use the Confidential Information in the performance of this Agreement.

9.2 Confidential Information does not include information that (i) is or becomes publicly available other than by breach of confidentiality by the receiving Party; (ii) is communicated to the receiving Party without any obligation of confidence by a third party who is not itself under any obligation of confidentiality; (iii) is already in the possession of the receiving Party, as evidenced by written records; or (iv) is required to be disclosed by applicable law, regulatory authority, or court order.

9.3 Notwithstanding anything else herein, nothing in this Agreement shall prevent either Party from producing documents or disclosing information that is required by law (such as the Michigan Freedom of Information Act [FOIA]) or a valid production document (such as a warrant or subpoena).

9.4 This Article 9 shall survive any termination or expiration of this Agreement for the period stated in clause 9.1.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 Nothing in this Agreement shall be construed as granting either Party any right, title, or interest in any of the other Party’s pre-existing Intellectual Property.

10.2 The Parties agree that when the actions taken by virtue of this Agreement result in products of commercial value and intellectual property rights, they will be regulated by national legislation and international conventions in force. Participants should also observe the Intellectual Property Policy of the Party responsible for the funding of their team, including observing FAPESP’s and UM’s respective rules and procedures.

10.3 In the case of joint ownership of Intellectual Property, the relevant parties will in good faith endeavor to establish a joint ownership agreement regarding the allocation and terms of exercising that joint ownership, taking into account the relevant contributions of the parties.

11. MISCELLANEOUS

11.1 Each of the Parties warrants its power to enter into this Agreement and carry out its obligations hereunder.

11.2 Each Party acknowledges that this Agreement contains the whole agreement between the Parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it. The guarantees above are the only ones given by the Parties. Any other guarantee, whether written or oral, express or implied, is deemed non-existent. However, this clause shall not be construed as excluding liability for fraud.

11.3 This Agreement supersedes any prior agreement between the Parties whether written or oral, express or implied, and any such prior agreements are deemed cancelled but without prejudice to any rights which have already accrued to either of the Parties.

11.4 Any notice to be served on either of the Parties by the other shall be sent by airmail or by facsimile and shall be deemed to have been received by the addressee on the fifth day after the date of posting or on the next business day if sent by facsimile to the correct number and a transmission report can be produced. Notice shall be sent to the following addresses:

For FAPESP:

Diretor Científico
FAPESP
Rua Pio XI, 1500
São Paulo SP, CEP 05468-901
Brazil

Tel: +55 (11) 3838-4010
Fax: +55 (11) 3838-4111

For U-M:

Attn: Vice Provost for International Affairs
University of Michigan
6050 Fleming Administration Building
503 Thompson Street
Ann Arbor, MI 48109-1340, USA

Tel: 734-763-0395
Fax: 734-764-4546

11.5 The failure by either Party to enforce at any time or for any period any of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.

11.6 Each Party shall not assign or sub-contract any of its rights or duties under this Agreement without the consent in writing of the other Party, such consent not unreasonably to be withheld.

11.7 This Agreement is not intended to establish, and shall not be construed by a Party as establishing any form of business partnership, joint venture, employment or independent contractor between themselves or to have created the relationship of principal and agent, a membership or any other legal entity between the Parties, other than as specifically and expressly set out herein.

11.8 Except as otherwise expressly provided for herein, nothing in this Agreement shall confer or purport to confer on any third party any benefit or any right to enforce any term of this Agreement.

11.9 Each Party agrees to comply with, and provide reasonable assistance to the other Party in relation to their relevant national data protection and freedom of information legislation, in so far as this legislation relates to this Agreement.

11.10 The Parties agree that this Agreement is produced in good faith, so that any dispute and/or interpretation arising therefrom in relation to its implementation, execution and compliance will be resolved jointly by them and shall be documented in writing. If no resolution is reached between the Parties, this Agreement will be terminated without liability to the Parties. The Parties agree to work together to mutually determine how to conclude any activities developed under this Agreement in progress as of the date of notification of termination.

This Agreement is completed in English and Portuguese, with both versions being equally authentic.

This Agreement is hereby signed in two (2) copies in each language, with one (1) copy remaining in the possession of each Party.

THE REGENTS OF THE UNIVERSITY OF MICHIGAN
Mary Sue Coleman
President

FUNDAÇÃO DE AMPARO À PESQUISA DO ESTADO DE SÃO PAULO
Celso Lafer
President