When should it be used?
- When an industry partner (the Collaborator) and a university have, or are developing, an ongoing relationship in a specific area of research, or the industry partner requires the expertise of a specific research team or other assistance from the university. This may be a one-time service or part of an ongoing relationship in a specific area of research
- The support is agreed by the parties as being routine (not involving research), clearly defined, low impact and generally of low to medium risk
- The industry partner is fully funding the support on a commercial/market rate basis
- The parties are Australian entities
The Collaborator can be a private sector entity or a Commonwealth Entity.
When should it not be used?
- When the proposed work involves investigative research where the end result is not known at the outset but could lead to a new process or product or just scientific knowledge – use either the Accelerated Research Agreement or the Standard Research Agreement
- For research based projects with an uncertain outcome
- For leasing or licensing equipment – use the Equipment Licence Agreement
- As a licence or assignment agreement solely for access to (and use of) the University's or the Collaborator's Pre-existing intellectual property rights (IPR)
- For commercialisation of any IPR
The HERC IP Framework provides separate licence and assignment agreements for IPR and these should be used where any significant IPR will be licensed or assigned between the parties. There are also separate templates for the conduct of research projects.
Key considerations when completing the template
The following table is provided as a guide to help the parties appreciate the key considerations that each party will have when negotiating a Technical (Consulting) Services Agreement using the template.
The template is appropriate for the delivery of services to the Collaborator where these are being charged in a commercial / market rate basis. The template can be adapted for services that are being provided at less than commercial / market rates. However, in these situations the University’s obligations would not be expected to be as onerous and appropriate changes on the template will be required to reflect this. The template is provided in the Standard track. Discussing and understanding each party’s needs and concerns up front will help you reach an agreement more quickly. A technical (consulting) services agreement may take up to a few months to negotiate and sign, depending on the complexity of the proposed arrangements. It is, therefore, important the parties start these discussions as early as possible.
For organisations, particularly SMEs, that have not previously been asked to enter this type of agreement, this table will help you understand what the key provisions of a technical (consulting) services agreement are and what you need to discuss and agree in order to finalise the agreement from the template.
Additional plain English guidance on the meaning of key clauses is provided in a separate annotated version of the template.
This table sets out the key points each party needs to consider when using the Technical (Consulting) Services Agreement. Understanding your own key considerations, as well as those of the other party, will help you to negotiate a fair and reasonable agreement that works for both parties.
| Key points |
Technical (Consulting) Services Agreement Provision |
University |
Industry Partner (Collaborator) |
|---|
| Details of Services |
- A clear description of the Services and tasks/activities that the industry partner (Collaborator) is asking the university (University) to undertake
- The key personnel at the University responsible for performing the Services also needs to be agreed
- If the University intends to use students for delivery of the Services, they are treated the same as other Personnel unless expressly agreed by the parties
- If material and support are being provided by the industry partner, this should be discussed and included in the Details Schedule
- Key deliverables in terms or Milestones and outputs from the Services (called Contract Material) need to be agreed and listed in Schedule 1
- If the University intends to use subcontractors the template can be updated to allow the parties to pre-agree any subcontractors up front
|
Ensure you are clear what services you are expected to provide and that the required internal resources are available from the nominated key personnel
- Ensure you have appropriate arrangements in place with any students that you intend to use to deliver the Services
- Ensure the reporting and meeting requirements are appropriate for the nature of the Services being delivered
- Ensure that Milestones and Contract Materials are realistic and achievable, particularly if payment is dependent on you meeting these
- If the Services are not being provided at a full commercial/market rate, you should expect to have more flexibility in how and when the work is delivered
|
- Ensure you understand what services you need and that the agreed scope of the work meets this
- Ensure the agreed Milestones and final deliverables meet your needs and you are aware any risks
- Ensure the agreed work and deliverables is appropriate to the fees being charged
|
| Fee |
- The agreement is structured so that the rates and agreed charging principles can be inserted in the Details Schedule
- The intent of the agreement is to provide services on a full commercial/market rate basis and the obligations/rights of each party reflect this
|
- Ensure you are clear how your Fees will be charged and that this is reasonable given the nature of the agreement, the support being requested and the context of your wider relationship with the industry partner
- The fees should reflect a commercial / market rate, including an appropriate profit margin over your direct costs
|
- Ensure you are clear how the Fees will be charged and that you can meet your financial liabilities
|
| Confidential Information exchanged |
- A clear and concise description of scope of the information that each party intends to share with the other and which that party considers to be confidential
- How long this information must be kept confidential should also be included. Often this time period will be 5-7 years, although longer periods may be appropriate. In most cases the term will be the same for both parties
|
- Ensure if confidential information is exchanged with the services that this is clearly identified
- Ensure this information is kept confidential long enough so as not to impact on your research and commercialisation activities. For example, so that others cannot use this information before the University has published it or filed patent applications
- Understand what restrictions apply to confidential information shared with you by the Collaborator. This will usually include information about how your services are supporting their business activities
|
- Ensure you understand what information you receive from the University needs to be kept confidential
- Ensure it is clear what information you will share that you consider to be confidential information and that this is kept confidential long enough so as not to impact on your commercial activities
- For example, so that the University does not publish the information and competitors do not benefit from this confidential information whilst it still provides a competitive advantage
|
| Intellectual Property Rights (IPR) |
- Any Pre-Existing IPR that is being used in the Services should be documented by both parties, along with any restrictions on its use. This is important particularly for the Collaborator as additional rights may need to be negotiated if rights to any University Pre-Existing IPR is required for the Collaborator to commercialise the outputs from the Services
- The Collaborator will own any new IPR created through the Services and the University will have no right to use this in the future expect as part of the delivery of the Services
- If any Third Party IPR (including software) is proposed to be used for the Services, this needs to be identified along with any restrictions on its use
|
- Ensure you document any Pre-existing IPR and any Third Party IPR that will be required to deliver the Support. This is important so that the industry partner knows what additional licences it may need to commercialise the outputs from the Services
- Ensure you document any restrictions to use of your Pre-existing IPR or Third Party IPR by the industry partner, particularly in the context of the licences you grant
- For new IPR owned by the company, you should not expect to be granted a licence to use this for your academic research and teaching purposes unless the industry partner is not paying a full commercial/market rate
- If the company is not paying a full commercial/market rate, it may be appropriate that the University owns certain of the new IPR from the Services
|
- Ensure you document any material and assistance that you are providing to the University, particularly if this material represents valuable company IPR
- Ensure you have the rights to provide the University with any material and other Pre-Existing IPR that it needs from you to provide you with the Services
- Ensure you understand whether you can commercially use the outputs from the Services or whether additional licences will be required from the University for its Pre-Existing IPR or for Third Party IPR used in the Services
|
| Additional right of the University |
- If the industry partner is paying a full commercial/market rate, the University would not expect to have any rights to use the new IPR created through the Services (for example, for academic or research purposes), or to have any rights to publish the results
- Unless agreed otherwise, the University must obtain the agreement of the industry partner to transfer its obligations under the Agreement
|
- Be clear that you will not have any rights to use the outputs from the Services unless these are included in the Details Schedule
- Ensure appropriate rights are included where the industry partner is not paying a full commercial/market rate for the Services or where this is otherwise agreed by the parties
- Consider whether you need to change the no assignment clause if the University anticipates that it may want to transfer its rights and obligations under the Agreement to any new spin off entity or affiliate (for example, under the Australian Economic Accelerator Program)
|
- Ensure any additional rights agreed for the University are appropriate for the circumstances of the Services and do not impact on your commercial activities
|
| Limit of Liability and Indemnity |
- In recognition of the commercial nature of the support, the university should be expected to give certain guarantees and accept a high level of liability
- The University is also expected to indemnify the Collaborator. The parties can agree to remove this indemnity or modify it
|
- Be clear that the approach to liability is appropriate for the support you are giving, the rates being charged and the industry partner’s application of this support
- If a liability cap is agreed in the Details Schedule, this would normally be a multiple of the Fees paid for the Services or it might be agreed to align with the organisation’s insurance limits
- Be clear that the indemnity is appropriate in the circumstances and if not, ensure the agreed changes are recorded in the Details Schedule. For example, for certain Services the University may not be able to agree to an indemnity for IPR infringement
- The University should not expect to accept a level of liability in excess of the Fees, nor to fully indemnify the Collaborator, if the Fees being charged for the Services are not at a full commercial/market rate
|
- Be clear that the approach to liability and indemnity is appropriate for the Services you are receiving, the rates you are paying and the company’s application of the results from the Services
|
