Agreement Considerations

Parties to the Agreement and Signature Authority

Parties to the Agreement

The “parties” involved in a sponsored research agreement with the University of Washington are the sponsor and the UW.

The University does not contract with individuals to sponsor research. Sponsors are governmental entities, non-profit entities, corporations, or other legal entities recognized under US tax code.

Signature Authority

All sponsored research agreements are accepted on behalf of the University by the UW Office of Sponsored Programs (OSP). The UW’s OSP is the only office with delegated authority to accept awards on behalf of the UW. All other apparent or assumed authority to accept awards is null and void. Acceptance of terms that bind the University is made upon the signature of the UW OSP representative with delegated signature authority for the institutional official.

Principal Investigator

A sponsor may desire a specific Principal Investigator (PI) to lead the project described in the scope of work. It is also typical for this PI to be named in the agreement. If a PI becomes unavailable, the UW will name a suitable replacement PI, subject to the acceptance of the sponsor.

The PI has the responsibility to ensure that funds are spent appropriately and according to sponsor requirements, UW policies, and applicable laws.

Scope of Work

All sponsored agreements must include a scope of work. The scope of work describes the research project as proposed to the sponsor. For the UW to accept an agreement the scope of work must align with the mission of the UW. If the project will be a collaborative project, both the PI and the sponsor may develop the scope of work.

Project Period and Termination

Project Period

The agreement sets out the time frame for the project, including both a start and end date.The agreement may detail if expenses can be incurred before the project begins or extensions to the project period will be allowed. The agreement may also indicate if the sponsor’s approval is needed for advance spending or extensions.

Termination

The agreement will also include termination rights for both parties. Termination is typically allowed for any reason upon written notice ninety days prior. Upon termination, a sponsor is responsible for all costs accrued prior to the effective date of the termination, including non-cancelable expenses incurred by UW.

Reporting

One of the ways a sponsor learns of the project progress and results is through reporting made by the PI to the sponsor. Reports are provided at the end of the project. In some cases, a sponsor can request more frequent reports (e.g. annual) if a multi-year project. The sponsor may also request additional types of reports such as annual fiscal reports or innovation reports.

Costs, Invoicing, & Payment

Costs

An agreement will include a budget for the project, which is approved by the sponsor and the UW. A sponsor agrees to reimburse the UW for costs and expenses incurred by the UW in the performance of the project. This includes Facilities and Administrative costs.

Both parties understand that a budget is an estimate. If changes from the budget are needed and consistent with the aims of the project a PI may rebudget within certain limits or after prior sponsor approval as indicated in the terms.

Invoicing and Payment

Invoicing and payment requirements are set out within the agreement. Most sponsors prefer to be invoiced regularly, usually monthly, and make payment based on costs incurred. This is considered cost reimbursable billing.

In some cases, a sponsor may prefer to enter into a fixed-price arrangement. Fixed price payments are when the total estimated cost of the project or costs per unit are presented to the sponsor at the proposal stage, and the sponsor makes regular firm fixed-price payments on a schedule. This schedule for fixed-price payments is set out in the agreement.

Risk of cost increases or overruns in a fixed price context are absorbed by UW and are the PI’s responsibility (see GIM 2).

Exchanging Confidential Information

Confidential Information

If the only reason for an agreement with the UW is for an exchange of confidential information, a Confidentiality Agreement (CDA) is the appropriate agreement type.

It is common for the parties to exchange confidential information in the context of a sponsored research agreement, especially if the project is collaborative.

Confidential Information must be defined in the agreement.

An agreement will set out that confidential information remains the property of the disclosing party. The agreement should detail how each party will treat the other party’s confidential information.

Information not Considered Confidential

There are certain types of information that are not considered confidential such as information:

• already known to the receiving party at the time of disclosure; or becomes generally available to the public or otherwise part of the public domain;
• independently developed by the receiving Party, as documented by written evidence.

Information not considered confidential should be made clear within the agreement.

Washington State Public Records Act

It is important for sponsors to note that as an agency of the state of Washington, the UW is subject to the Washington State Public Records Acts, RCW Chapter 42.56. The UW is compelled to disclose information as required by applicable law and regulations.

Publication

Part of the University’s mission is dissemination of knowledge. Research results are expected to be published or otherwise distributed on a nondiscriminatory basis and within a reasonable time.

It is typical for a sponsor to want to review manuscripts or other proposed drafts before publication. The UW can provide this usually no more than 30 days prior to public disclosure.

A sponsor can request redaction to protect its confidential information or delay publication to protect its interests in the project intellectual property.

A delay cannot be unreasonable and typically is for no more than an additional thirty (30) days.

Acknowledgement and Publicity

At a sponsor’s request, the UW will make an appropriate acknowledgement of the sponsor’s support in any publication.

A sponsor’s use of UW trademarks is prohibited unless a license from the UW is obtained.

Intellectual Property

Basic objectives of the UW’s Intellectual Property policies:

• Promote the progress of science and technology.
• Assure discoveries and inventions are used in ways most likely to benefit the public.
• Provide recognition to UW researchers.
• Share royalty revenues received from licensing of inventions with UW inventors.
• While the UW typically grants a royalty-free license to the sponsor to make internal use of any written reports and data that arise from the research project, the UW retains ownership to all inventions arising from UW-conducted research whether or not patentable.
• In appropriate cases, the UW will grant a sponsor a first right to negotiate a reasonable commercial license to use the technology arising from the research, which may include the right of the sponsor to obtain exclusive rights.
• A PI and a Sponsor may opt-in to the Washington Innovation Advantage Program (WIAP), which offers several upfront commercial licensing options.

Review the policy – GIM 40: Disposition of UW Intellectual Property in Sponsored Program Agreements

Reasonable Efforts

State-of-the-art research is unpredictable and research results are inherently uncertain. UW research is generally conducted on a reasonable effort basis, performed at a standard consistent with research at comparable academic institutions. The UW does not make any warranties, either express or implied, regarding the results of the project.

Indemnification and Insurance

All agreements will set out limitations of risk by the parties. As an agency of the state of Washington, the UW is subject to RCW 28B20.250 and the policies of the Board of Regents.

The UW can defend, indemnify, and hold harmless a sponsor, for loss or damage to any property, that are a result of the negligence of UW personnel, or the failure of the UW to perform its obligations under the agreement, with the understanding that this obligation ends to the extent any such losses, claims, liabilities, damages, and costs are the result of the negligence of the sponsor or the failure of the sponsor to perform any obligation under the agreement. The UW does not indemnify a sponsor for any acts or omissions by its personnel outside of official activities.
The UW is principally covered by a program of self-insurance. The UW cannot agree to terms that require us to purchase insurance, or name the sponsor as an insured party under our self-insurance.
In some cases, it is appropriate for an agreement to include mutual indemnification, which sets out each party indemnifies the other for its own negligent acts. This is typical when both the UW and the sponsor will be collaborating in the work.
The UW does not agree to indemnify the sponsor against infringement of third party rights.

Freedom of Participation; Nondiscrimination

The University is committed to the maintenance of an open academic environment that fosters intellectual creativity, and freedom to participate. Faculty, staff, and students must be free to carry out research in an open and unrestricted manner.

This freedom is undermined by restrictions on participation that are based on factors other than interest or competence, by restrictions on access to research facilities that disrupt the overall climate of openness on campus, and by restrictions on publication or dissemination of research findings.

UW policy also prohibits discrimination against a member of the University community because of race, color, creed, religion, national origin, citizenship, sex, pregnancy, age, marital status, sexual orientation, gender identity or expression, genetic information, disability, or veteran status.

Unless under circumstances related to special scholarly expertise, national security, or under its own policies such as research misconduct, the UW does not accept limitations on participation.

Dispute Resolution

If there is disagreement, every effort is made to resolve beginning with informal discussions. If the dispute cannot be resolved informally, either the UW or the sponsor may initiate dispute resolution. Alternative dispute resolution is allowed on a case by case basis.

Governing Law, Jurisdiction, Venue

The UW, as a state agency, is governed according to the laws of the State of Washington.

The UW’s preferred jurisdiction and venue are state or federal courts located in King County, Washington.

Warranties, Liability, and Risks

The UW:

• Receives no fee or profit on its research with which to cover business risks.
• Generally is unable to accept contractual provisions that establish rigid deadlines or deliverables, impose penalties for failure to progress at a certain pace, or provide for withholding of payment if the sponsor is not satisfied with the results, or is unable to pay based on factors beyond the reasonable control of the UW.
• Research agreements will have express provisions disclaiming any liability for sponsor business losses, such as lost profits.
• Does not guarantee or warrant no infringement on the patent, copyright, trademark or other proprietary rights of a third party.