Which contract should you use?

Difference between research and consultancy

Most contracts within Warwick are handled by one of our Professional Services teams – Legal, Procurement, Warwick Innovations (Warwick’s Tech Transfer Office) and Research and Impact Services (R&IS). R&IS support on contracts related to research activity as defined below.

Research

Research and experimental development (R&D) comprise creative work undertaken on a systematic basis to increase the stock of knowledge, including knowledge of mankind, culture and society, and the use of this stock of knowledge to devise new applications.

The term R&D covers three activities: basic research, applied research, and experimental development. Further details on these activities can be found here.

Exclusions include: Scientific and technical information services; testing and standardisation; feasibility studies, specialised health care, policy-related studies, programmatic evaluations, purely R&D financing activities, and indirect supporting activities.

Consultancy

Consultancy provides expert advice or services to a client for a fee. This often involves intellectual input from the University, however no new knowledge is created.

Examples include: routine testing and analysis of samples/materials, feasibility studies, standardisation, general data collection.

Activity classed as consultancy is supported by Warwick’s Central Legal teamLink opens in a new window via the FP11 process.

Don’t worry if you're unsure where your activity falls. Please email your R&IS contact who can advise.

Summary of what it means to work with a University and the required process:

Undertaking research activity with a University offers several benefits such as:

Access to expertise

Access to state-of-the-art facilities and equipment

Collaboration and networking

Impact and Innovation

When engaging with a University, it’s important to keep in mind the requirements of the University, in particular its charitable statusLink opens in a new window, and its role within wider society. A University’s primary aim is to advance knowledge through teaching and research for the public benefit. It’s particularly important that the charitable aims of the University are considered when undertaking research with industrial stakeholders.

Key Contractual Terms

Collaborators/partners sometimes supply their own contract for review, which often contains terms that are more beneficial to that party and overlook terms required by the University. Warwick has a suite of contract templates that cover the different agreement types required to facilitate research.

The use of Warwick’s template agreements as a starting point for negotiation often leads to a quicker resolution of the terms, thus enabling the research activity to get underway without undue delay. However, we recognise that funders and partners may want to use their own terms, and we are able to accommodate this.

R&IS reviews and negotiates contractual terms related to research activity to ensure the responsibilities of the parties are agreed upon, ensuring compliance with regulations, including Warwick’s charitable objectives as a University, subsidy controls, safeguarding IP, and protecting the interests of the parties. Where applicable, the team also ensures that funder terms and conditions are met when agreeing to terms.

There are several elements of a research contract that require particular consideration and are frequently the main negotiation points.

These include the below...

Intellectual Property (IP)

As a Higher Education Institute (HEI) and in-line with our charitable aims, researchers need to be able to use and build upon the research undertaken by them. When engaging with certain funders or with commercial partners for example, the IP rights retained by the university may vary. In all circumstances, it is essential thatthe university retains the ability to use the IP generated for further teaching and research purposes. Should a commercial partner require access to the university’s background IP and/or foreground IP for commercial exploitation, licensing terms will be agreed on a fair and reasonable basis and in compliance with the Subsidy Control Act.Link opens in a new window

Publication

As part of the university’s academic mission, researchers (including PhD students) must be able to publish the results of their research promptly and without obstruction. There are occasions when it may be necessary to delay publication, e.g. when working with an industry partner who needs time for patenting; however R&IS will ensure that researchers’ publication rights are safeguarded when negotiating terms.

Price

Most research activity at the university is costed based on fEC – the full economic cost, in line with the Transparent Approach to Costing (TRAC)Link opens in a new window methodology, which is a standard costing model used across the HEI sector, The fEC is the total cost to the university of undertaking a specific project/activity. The price - the amount the university receives when undertaking the research - is a factor in the IP terms the university is able to agree to. Typically, the fEC needs to be met in order to allow IP to fully pass to the other party, otherwise this can create a subsidy which falls within the Subsidy Control ActLink opens in a new window.

Liability

In nearly all contracts the university enters into, a liability cap is required as standard. This helps both parties manage the risk when entering into a legally binding contract, we are also required to ensure we have appropriate caps to comply with our banking covenants. Certain liabilities cannot be legally capped, but where possible, the university would seek to cap the liability to the value of the agreement. For agreements where no funds are changing hands, a nominal cap is included, proportionate to the risk of entering into the agreement based on the specific project and the terms being agreed to. This also includes a cap on banking covenants.

Confidentiality

Confidentiality clauses in research agreements are important for several reasons, such as to protect sensitive information, legal compliance (e.g. the university’s ability to comply with freedom of information requests), maintaining trust between the parties and limiting risk and liability. Confidentiality clauses must not be so overly limiting that they affect the researcher’s ability to publish results. Confidentiality clauses can also ensure that your results are treated in confidence until such time that you publish or make then publicly available, thereby ensuring someone else doesn’t publish your work.

Termination

Summary of Each Contract Type

There are various types of research contracts which serve different purposes. If you discuss your needs with your R&IS contact we can ensure that the right contract is put in place, in cases where the contract needs to cover various purposes e.g. material and data transfers, we can in most cases cover everything under the one agreement.

This ensures that the contract is fit for purpose and avoids delays and complexity later.

The main types of contracts are detailed below...

Non-disclosure Agreement (NDA)

Legal agreement which ensures information, such as research results andknowledge, which are disclosedbetween parties are kept confidential. Companies will often to require an NDA to be place before engaging in detailed discussions.

Example: NDAs are often signed before engaging in discussions, partnerships, or collaborations that involve proprietary or sensitive data such as discussions with industry partners on a proposed commercial research project.

Key elements: A specific purpose. A stated term (duration of the contract) and obligation period (length of time confidentiality provisions are in effect) - typically 1-3 years and 5 years respectively. Regulatory provisions such as disclosure in line with the Freedom of Information Act (FOIA). Laws of England and Wales preferred.

Material Transfer Agreement (MTA)

Sharing of materials and samples can be essential to an academic’s research. In order forthe university to receive material for use research activity, an MTA should be put in place. Any MTAs which involve the transfer of human tissue requires additional internal governance steps and approvals. MTA will set out how he materials can be used and for what purposes, by having this agreed within a contract, provided clarity and avoids conflicts which could delay your research or being able to publish.

Please note, MTAs related to outgoing materials i.e. material owned by the university and shared externally, are handled by the university’s technology transfer office – Warwick InnovationsLink opens in a new window.

Example: Materials to be received by the university for analysis as part of a research project.

Key elements:The required use of the material. Conditions of transfer- details on receipt/return and transportation of the materials. Any payment information. The ability to publish. IP ownership. Confidentiality terms and a liability cap e.g. should materials be lost/damaged.

Data Sharing Agreement (DSA)

Sharing of data for research use often requires a data sharing agreement to be put in place – this can be both incoming and outgoing. Where data to be shared is classed as personal dataLink opens in a new window , more extensive data sharing terms are required in compliance with UK GDPR. Please note, under UK GDPR, pseudonymised data is still classed as personal data.

Example: Access to sensitive data or health-related data from a hospital for analysis or clinical studies.

Key elements: Stated reason for data sharing. How the data will be collected, stored and accessed. Safeguarding of the data – how the data will be used and protected. Compliance with data protection regulations. IP ownership and publication. Confidentiality.

Collaboration Agreement (used interchangeably with Consortium Agreement)

Covers collaborations between two or more organisations to deliver a specific project. It defines the terms of the collaboration, in particular, the roles/responsibilities and ownership of results. Collaborations can include funded projects and unfunded collaborations i.e. no funds exchanged between parties. Collaborations with other UK universities or similar not-for-profit organisations typically follow the Brunswick template agreement. Collaborations between universities and businesses typically use the model agreement known as the Lambert Model whichfacilitate negotiations and provide examples of best practice. Using sector templates where these exist help speed up the contracts process.

Example: Collaboration Agreement put in place between UK universities following award of funding from a research council.

Key elements: Roles and responsibilities defined and ensures compliance with funder terms. IP ownership and exploitation – dependent on the funding provided and any overarching funder requirements, granting of a licence for teaching and research use. Ability to publish in-line with normal academic practice. Confidentiality and ethical provisions. Liability cap and consequences of termination. Legislative requirements e.g. NSI Act.

Studentship Agreement

A studentship agreement governs the terms and conditions of postgraduate research that can be either fully or partially funded (e.g. iCASE or doctoral training scheme) by an external party.

Example: Studentship agreement with an industrial partner who has agreed to be a funder on the Warwick Industrial Fellowship (WIF) scheme.

Key elements: IP ownership and exploitation – dependent on funding provided. Ability to publish in accordance with normal academic practice and in particular the ability of the student to submit their thesis for examination unobstructed. Payment terms. Confidentiality. Liability cap. Termination process. Legislative requirements e.g. NSI Act.

Site Agreement (mNCA)

A site agreement or model Non-Commercial Agreement (mNCA) is used in clinical research and clinical trials to outline the terms under which clinical data, research findings or patient data will be shared or used.It is designed to be used without modification or negotiation.

Example: The funder is the National Institute for Health Research (NIHR) and Warwick is the Sponsor for the Project, which is being coordinated by Warwick Clinical Trials Unit (WCTU). The Study is Multi-Centre, having more than one Investigator Site and Warwick as the Sponsor wishes to contract with the external Investigator Site for the purpose of identifying and recruiting potential Participants for the Project.

Key elements:The mNCA is designed to be used without modification or negotiation. Includes provisions for data management and sharing.

Sub-contract

Work subcontracted by one of the parties to the main agreement to a third party to deliver a specific piece of work. The subcontracted party is typically an external third party, often with specialist expertise and/or capabilities.

Example: A cultural sector organisation provides specialist services, such as digitisation or design, to complete work supported by a funded research project.

Key elements: If applicable, the flow down of overarching terms and conditions from the main funder. Detailed scope of work. IP ownership – usually retained by the contractor. Ability to publish. Payment terms and VAT treatment. Confidentiality. Liability cap and termination process.

Sponsorship Agreement/Direct Contract Research (DCR)

Research activity funded by an external organisation, typically an industrial partner, to address a particular research objective(s). The industrial partner often provides financial support and resources with the university undertaking the research utilising staff expertise and university facilities/equipment.

Example: An automotive company funding research to advance a particular technology or product.

Key elements: Detailed scope of work. IP ownership and exploitation – dependent on funding provided, licence for teaching and research use granted, terms detailing exploitation of IP. Ability to publish in accordance with normal academic practice in compliance with confidentiality terms. Payment terms and VAT treatment. Liability cap and termination process. Legislative requirements e.g. NSI Act.

Framework Agreement

An overarching contract to establish set terms governing separate ‘call off’ projects conducted under the framework contract. Framework agreements are usually used in cases where longer term sustained activity is expected with a partner, however this does mean that there is little or no flexibility to modify terms to suit different projects.

Example: Frameworks are often used with industry partners to help streamline future research activity. These are often put in place with businesses which the university has worked with repeatedly before and with whom we have an established relationship. Framework agreements are very often used byUK government and the wider public sector to streamline tendering process.

Key elements: As per DCR/Sponsored Research with additional details on governance such as steering committees.

Amendment/Variation Amendment/Variation - Novation Amendment/Variation – Termination

Decision Tree Graphic

A decision tree to help you understand the type of contract you may require can be found hereLink opens in a new window.