The
Software Engineering Research Center
(SERC)
Memorandum
of Agreement
This Memorandum of Agreement
is effective the _____ day of _____, 19__ by and among (1) The Purdue Research
Foundation, an Indiana Corporation with its principal offices in West Lafayette,
Indiana (hereinafter referred to as "PRF"), (2) West Virginia University,
located in Morgantown, West Virginia, and (3) each of the undersigned
universities:
WHEREAS
Purdue University, a state university in the State of Indiana and The West
Virginia University in Morgantown did establish in 1998 an operating entity
known as The Software Engineering Research Center (hereinafter referred to as
"SERC") under the auspices of and with the aid of a grant from The National
Science Foundation (hereinafter referred to as "NSF") for the purposes of
performing research into scientific and engineering aspects of computer software
technology.
WHEREAS
the activities of SERC are funded by (1) NSF and other agencies of the U S
Government, (2) Industrial Members, and (3) other funds that may be received
from time to time.
WHEREAS
SERC has been in continuous operation since its establishment and Purdue
University and The West Virginia University have made and observed certain
agreements and conventions between them with respect to the subject matter
contained herein.
WHEREAS
Purdue University and West Virginia University are desirous of formalizing and
memorializing these agreements and conventions.
WHEREAS
each of the undersigned universities in addition to Purdue University and West
Virginia University are desirous of joining such agreements and conventions.
NOW
THEREFORE, for, and in consideration of, the mutual promises and covenants
herein contained and intending to be legally bound the parties hereto agree as
follows:
1.
Definitions
(a) "Research
Member" is defined as "PRF", West Virginia University, as well as any college,
university or affiliated research corporation that subsequently joins this
Agreement for the purposes of participating in the activities of SERC.
(b) "Institution"
shall refer to Purdue University, West Virginia University or any of the
colleges or universities on whose behalf a Research Member joins this agreement
as the context so requires.
(c)
"Industrial
Member" is defined as any company, corporation, agency or organization that: (1)
has joined and been accepted as a sponsor of SERC by signing an
"Industry/University Cooperative Research Center for Software Engineering
Research Agreement" (hereinafter referred to as "The Affiliation Agreement")
that has been signed by authorized institutional representatives of the Research
Members and (2) has paid annual fees to sponsor research activities in SERC
pursuant to said agreement. An Industrial Member is deemed to be "current"
unless such Member is in violation of its Affiliation Agreement by failing pay
annual fees according to the terms of its Affiliation Agreement or by violating
any other provision of said agreement and has taken no steps to remedy the
violation.
(d)
"Industrial
Advisory Board" (hereinafter referred to as "IAB") shall refer to a board
comprised of one representative appointed by each of the Industrial Members and
designated in that member's signed Affiliation Agreement, which designation may
be changed from time to time at the written request of the Industrial
Member.
(e)
"SERC
Policy Board" (hereinafter referred to as "SPB") shall refer to a board
comprised of (1) one institutional representative from each Research Member with
personnel and financial authority over the SERC activities at his or her
Institution, (2) the current and previous chair of the IAB, as defined by the
currently approved By-Laws of the IAB, (3) a non-voting representative of NSF.
(f)
"Inventor"
is defined as the discoverer of any patentable invention, the author of any
copyrightable work, or the author of any licensable computer program.
(g)
"Intellectual
Property" is defined to be (1) all inventions, discoveries or patentable ideas
conceived or reduced to practice as well as (2) all computer software and
copyrightable material or data developed during the term of this agreement.
(h)
"Royalty
Income" is defined as all income of any kind received in exchange for a license
to use any Intellectual Property.
(i)
“Intellectual
Property Costs" shall refer to all costs directly associated with a particular
Intellectual Property including, without limitation, patent application charges,
attorneys' fees, costs of outside evaluation, patentability searches, preparing
patent applications, preparing assignments, applications, obtaining the issuance
of patents, maintaining patents, preparing license agreements, recording license
agreements, preparing security agreements, recording security agreements,
travel, administrative proceedings such as interferences and appeals within any
agency or office, litigation such as actions for royalty collection,
infringement, product liability, antitrust or the like including prosecution or
defense of same and compromise, settlement and judgment satisfaction of same;
the foregoing costs include but are not limited to attorneys' fees, agency and
office fees, court costs and judgment satisfactions.
(j)
"Normal
Operating Procedures" are defined by the currently approved edition of the
manual "SERC Operating Procedures and Guidelines" which, in addition to
administrative and technical practices and procedures, additionally documents
SPB and IAB by-laws and the amendments to such practices, procedures and by-laws
that may be made from time to time by vote of the IAB, SPB or Executive
Committee or by administrative action of the Director.
2. Enrollment of New Industrial Members. The Research Members shall endeavor to enroll new SERC Industrial Members. For a period of two years from the effective date hereof, fees collected from Industrial Members enrolled by Research Members other than Purdue University and West Virginia University shall be allocated, less the approved Center administrative expenses as hereinafter defined in Paragraph 8, to software engineering Research Projects proposed by the personnel of such Research Member and approved, with the advice of the IAB, by the Director. Thereafter there shall be no obligation to allocate such funds as herein above provided. It is provided, however, that this obligation to allocate such funds is subject to such Research Member enrolling new SERC Industrial Members on or before ________________. In the event any Research Member, other than Purdue University and West Virginia University, fails to enroll ______ new SERC Industrial Members by such date, there shall be no obligation to allocate any research funds to any such Research Member.
3.
Promotional
Material. No Research Member shall authorize or commission the publication of
any promotional materials containing any reference to the other Research Members
without the prior written approval of the other Research Member. It is provided,
however, that each Research Member may include any Other Research Member's name
and Research Projects titles in published material intended to enroll new
Industrial Members, communicate research results and other information about
SERC to current Industrial Members or disseminate scientific facts and findings
in accordance with customary research practices.
4.
SERC
Policy Board. The SPB shall recommend the appointment of the SERC Director and
Site Director(s) to the Institutions, annually review the performance of the
SERC Director and Site Directors, including input using a process defined by the
SPB and the IAB, and ensure that appropriate Institutional policies are defined
and enforced to enable the conduct of the SERC research programs and make
recommendations to the Institutions on other matters as required.
5.
Directorship of SERC. The SPB with
advice from the IAB will recommend to the appropriate Institution the
appointment of a SERC Director. The SERC Director serves in this capacity at the
pleasure of the SPB. The SERC Director shall be the primary decision-maker for
the SERC and shall have responsibility and authority for all aspects of SERC's
operation and performance. Specific responsibilities of the SERC Director shall
include, but not be limited to, soliciting research proposals, conducting peer
reviews, determining funding levels for Research Projects based upon
recommendations from the Executive Committee and the IAB, allocating and
distributing SERC administrative funds within the distribution limits
established in Paragraph 8 below, and providing accurate and timely financial
information to the IAB and the Site Directors as specified in Paragraph 8
below. In matters of policy, the
SERC Director shall receive guidance from and report to the SPB. The SERC
Director shall be the principal interface between the Center, the Industrial
Members, NSF and the IAB.
6.
Site
Directors. With the approval of the SPB and the advice of the SERC Director and
the IAB, each Institution may select a Site Director. In addition to duties
specified herein above the SERC Director shall serve as the Site Director at the
Institution in which his or her academic appointment is held. The Site Directors
serve in this capacity at the pleasure of the SPB. In matters related to the
operation of SERC, the Site Directors shall report to the SERC Director.
Specific responsibilities of the Site Directors shall include, but not be
limited to, encouraging and assisting in the preparation of new research
proposals, ensuring quality in the supported Research Projects, providing
accurate and timely financial information from the Institution to the SERC
Director, managing SERC administrative funds allocated to such, collecting,
reviewing and forwarding research proposals and technical reports to the SERC
Director and other Site Directors and hosting the meetings of the IAB that occur
at such Institutions.
7.
Executive
Committee. The SERC Director and the Site Directors shall comprise the SERC
Executive Committee. The Executive Committee shall have responsibility for
implementing plans and procedures that support, facilitate and enhance SERC
operations and capabilities. Specific responsibilities of the Executive
Committee shall include, but not be limited to, recruiting new affiliates,
recommending administrative budgets at each Institution, consulting with
researchers and the IAB regarding policy decisions, disseminating operational
and financial information to the researchers and the IAB, and recommending
research funding levels to the SERC Director based on IAB guidance subject to
the provisions of Paragraph 9 below.
8.
Administrative
Support and Reporting. The SERC Director with the advice of the Executive
Committee and the IAB shall determine the requirements and administrative
funding levels for SERC as a whole and for each Institution subject to the
provisions described hereinafter. The SERC Director shall also determine the
reporting arrangements for administrative support personnel and shall report
financial information at each IAB meeting to the IAB and Site Directors
following procedures and formats defined and approved by the SPB. The total
administrative budget of SERC shall be limited to no more than 30% of the total
SERC funds, with a minimum of 1/(N+2) of such 30% to go to each of the N
Research Members. The exact amount within these limits shall be determined by
the SERC Director. Administrative funding above these limits shall be approved
by the SPB or come from Institutional sources.
9.
Distribution
of Research Funds. Funds shall be allocated by the SERC Director for the support
of Research Projects subject to the conditions and provisions defined herein
above subject to the condition that each of the N Research Members shall receive
an allocation of funds no less than 4/(5N) and not to exceed (4+ N)/(5N) times
the funds available for distribution. Funds allocations either above or below
these limits must be approved by the IAB and SPB. This rule will govern each
distribution of funds except for such temporary distribution formulas that might
be in effect during the time that a new Research Member is subject to the
provisions of Paragraph 2 above. The distribution formula specified herein above
may be changed by majority vote of the IAB at any time and any such new formula
is deemed part of this agreement and supersedes all previously approved
formulas.
10. Transfers
of Funds between Institutions. The SERC Director shall prepare and submit to the
SPB an allocation recommendation for Research Projects funding that includes (1)
an accounting of all Institutional funds available for allocation to SERC
projects subject to the provisions defined herein above, and (2) a funds
transfer plan that specifies how the total pool of funds available for
allocation to SERC projects shall be allocated to individual Research Projects.
Such accounting of Institutional funds available for allocation shall include
from each Institution a certification by an authorized institutional
representative of available funds. Such funds transfer plan shall include
directions for transferring funds that have been certified to be available
between Research Members i n order to ensure that adequate funds are available
at each Institution to support the approved and authorized Research Projects at
such Institution. Upon acceptance of such allocation recommendation by the SPB,
the Research Members shall subcontract or otherwise cause the transfer of
appropriate funds to other Research Members if directed to do so by the funds
transfer plan.
11. Authorized
Expenditures. No Research Member shall expend, obligate or otherwise remove from
the total pool of funds available for allocation to SERC Research Projects or
SERC administrative functions, any funds collected from Industrial Members
except as authorized by the funds transfer plan defined herein above.
12. Timely
and Expedient Transfers. Each Research Member shall transfer funds to other
Research Members by an approved funds transfer plan as defined herein above
shall complete such transaction in a timely fashion. In carrying out said
transfers of funds, each Research Member acknowledges that the remaining
Research Members must satisfy the fiscal transaction requirements established by
their respective institutions and state laws.
13. Termination.
Each Institution shall remain a Research Member for so long as: (1) SERC
continues to function, and (2) such Institution is actively conducting research
pursuant to this agreement. Furthermore, each institution other than Purdue
University and the University of Florida shall remain a Research Member for so
long as: (3) at least one Industrial Member enrolled by such Institution is a
current Industrial Member of SERC, and (4) the SERC Director upon consultation
with the SPB deems it in the best interest of SERC. Additionally, any Research
Member may resign upon giving thirty (30) days written notice to each other
Research Member Affiliation Agreements to which the terminated Research Member
is a party, even if enrolled by such Research Member, remain binding on the
Industrial Member and the remaining Research Members.
14. Ownership
of Intellectual Property. Subject to the rights of the Industrial Members, all
rights, title, and interest in and to all Intellectual Property shall be as
follows:
(a)
All
Intellectual Property conceived and/or developed solely by one Research Member
shall belong solely to that Research Member.
(b)
All
Intellectual Property conceived and/or developed jointly by personnel of two or
more Research Members will belong to each such Institution. For purposes of
sharing income or other financial rewards from joint sale or licensing of said
Intellectual Property, each owner shall share in proportion to the percentage
contribution of the Inventors from each Institution. If the Inventors cannot
agree among themselves as to their proportionate contribution in the
Intellectual Property, then the SERC Director shall attempt to mediate the
dispute. In the event that the Inventors cannot then agree as to the
proportionate contribution of each Inventor then the Inventors shall be deemed
to have contributed in equal shares to the Intellectual Property.
15. License
to Use Intellectual Property for Internal Use. Each Research Member agrees to
and does hereby grant to each of the other Research Members, subject to the
terms of this agreement and subject to restriction of any sponsor, a non-
exclusive, nontransferable, royalty-free license (without the right of
sublicense) to (1) utilize any information and materials published by SERC and
(2) practice any invention resulting from research funded in whole or in part
from fees paid by Industrial Members during this or any subsequent term of this
agreement for educational and research purposes only. Such licenses are granted
in addition to licenses granted by the Research Members to Industrial Members
(1) by a valid Affiliation Agreement or (2) by separate agreements executed
between Research Members and Industrial Members pursuant to paragraph 7 of the
Affiliation Agreement.
16. Center
Publications. Subject to normal SERC operating procedures for approval and
distribution of reports and research products, all manuscripts being submitted
for publication shall have the prior approval of the Director, or, at the
Director's discretion, the Site Director(s) from the authors(s) Institution(s).
17. Publication,
Sale and or Use of Research Results on Jointly Owned Intellectual Property
(a)
Subject
to SERC Affiliation Agreements and Normal Operating Procedures for review and
approval for unlimited distribution of research reports by Industrial Members,
each Institution shall have the right to publish research results on jointly
owned intellectual property. It is provided, however that the Institution
desiring to publish such research results shall submit a draft of any such
proposed publication to the other Institution(s) with whom ownership of such
Intellectual Property is shared at least thirty (30) days prior to the
submission o f the research results for publication. All partial or complete
copies of such drafts shall bear the proprietary notations and labels specified
by Normal SERC Operating Procedures. Within this thirty day period and with good
reason, any party shall have the right to further delay any publication for a
period of not more than six (6) additional months by making an appropriate
notation in the "Limit ed Distribution Review Copy" legend of such draft and
returning the annotated legend to the SERC Director. For purposes of this
Memorandum of Agreement, the following shall be deemed to be "publication": (1)
cataloging and placing reports of research results in the library of any
Institution, (2) electronic distribution of such reports and computer software
in a form suitable for execution on a computer through public bulletin boards
and file transfer directories.
(b)
No
party shall conduct any activity or knowingly allow any activity to be conducted
that would constitute a bar against filing a foreign or domestic patent without
first giving the other parties sixty (60) days prior written notice.
(c)
All
jointly owned Intellectual Property is deemed to be "Proprietary Information".
Except as otherwise provided herein, each party agrees to keep all Proprietary
Information confidential for a period of three (3) years from its date of
disclosure. Each party shall protect and avoid disclosure of jointly owned
Proprietary Information with the same degree of care it uses to protect and
avoid disclosure of its own Proprietary Information. The obligation of
nondisclosure shall not apply if:
1.
such
information is, at the time of disclosure, in the public domain or such
information thereafter becomes a part of the public domain with a breach of this
Agreement by any party; or
2.
such
information is known to the receiving party at the time of disclosure; or
3.
such
information is independently developed by the receiving party; or
4.
such
information is received by the receiving party from a third party who had a
lawful right to disclose such information to the receiving party; or
5.
such
information is disclosed with the written approval of the parties; or
6.
such
information is obligated to be produced by the receiving party under the order
of a court of competent jurisdiction or pursuant to state or federal law.
18. Proprietary
Nature of Research Proposals, Financial Reports and Planning
Documents.
Research proposals, whether funded or not, research and administrative budgets,
income and expense statements, other statements of financial status, lists of
prospective Industrial Members, planning documents that assess Industrial Member
research needs, technology transfer plans, the annual report of the Center
Evaluator and other documents that bear proprietary legends and markings are
deemed to be Intellectual Property with ownership rights as defined herein
above. All such Property is deemed
to be Proprietary Information and each Research Member shall protect and avoid
disclosure of such Information with the same degree of care it uses to protect
and avoid disclosure of its own Proprietary Information subject to the
obligations and exceptions noted in Paragraph 17(c) above.
19. Administration
of Intellectual Property.
Any Intellectual Property conceived or developed solely by one of the parties to
this Agreement shall be administered solely by such party. Any Intellectual
Property conceived or developed jointly by two or more Research Members shall be
administered as hereinafter set forth. In the event that one Institution has
contributed greater than any other Institution to the Intellectual Property,
that Institution shall administer the Intellectual Property. In the event the
Institutions have contributed equally to an Intellectual Property then the
Director shall determine who shall administer the Intellectual Property. The
Institutions shall jointly review any Intellectual Property, evaluate its
commercial potential, and may enter into confidential nondisclosure agreements
with third parties for the disclosure of the Intellectual Property. If one
Institution elects to proceed with a patent application or other
commercialization of the Intellectual Property and the other Institution elects
not to proceed with a patent application or other commercialization of the
Intellectual Property, then the Institution that has elected not to proceed with
a patent application or other commercialization of the Intellectual Property
shall receive ten percent of any royalty income received from such
commercialization but shall incur no Intellectual Property Costs and shall have
a perpetual, non-exclusive, royalty-free license, without the right to
sublicense, to practice or use any Intellectual Property for educational or
research purposes. The parties further agree to cooperate with each other with
any administrative or court proceedings involving any Intellectual Property. The
party responsible for the administration of any Intellectual Property shall
substantially comply with all enforceable regulations and valid agreements
pertaining to that Intellectual Property.
20. Division
of Royalty Income.
The Institutions shall negotiate in good faith to set Royalty Fees for any
jointly owned Intellectual Property. All Intellectual Property Costs of jointly
owned Intellectual Property shall be borne by each Institution in relation to
their proportionate interest in the Intellectual Property. All Royalty Income
shall be shared by each Institution in proportion to t heir respective interest
in the Intellectual Property. All such Royalty Income shall be distributed at
least semi-annually within sixty (60) days after the end of the half fiscal year
of the administering Institution. Each Institution shall be responsible for
paying royalties to the Inventors of its Institution in accordance with its
Intellectual Property Policy. The Institution administering any Intellectual
Property shall keep the other Institution advised as to the activities in
administering the Intellectual Property including any progress on
commercialization, patent prosecution, or copyright protection. All such
information received by either Institution shall be deemed confidential.
21. Equipment
Procurement and Title to Equipment.
Any capital equipment whose total purchase price exceed $5,000 purchased with
SERC funds shall require the approval of the Director, who may at his or her
discretion seek the advice of the IAB.
Unless otherwise agreed in writing, all right, title, and interest in and
to said equipment purchased with SERC funds shall remain with the Research
Member conducting the research or the administrative function for which the
equipment was purchased.
22. Partnership
not Intended.
Any language herein that tends to indicate the formation of any partnership,
joint venture or any other form of legal entity between or among the Members,
Purdue University and the University of Florida has been used for convenience
only. The Industrial Members have jointly sponsored research to be conducted by
SERC. SERC is not a legal entity. Research Members may subcontract all or part
of this research work to other Research Members. Although the Industrial Members
shall share in any research results, no partnership, joint venture, or any other
form of legal entity is intended to be formed between or among any Industrial
Members.
23. Agreement
Executed in Counterparts.
This agreement may be executed in sever al counterparts each of which is deemed
an original and which together constitute one and the same agreement.
24. Notices.
All notices acquired and desirable hereunder shall be given by first class
certified mail, postage prepaid to the following address or other such address
as shall be designated in writing by the parties from time to time:
For
All SERC Matters:
Dr. Aditya P. Mathur
Software
Engineering Research Center
1398
Department of Computer Sciences
Purdue
University
West
Lafayette, Indiana 47907-1398
To
Purdue University
Dr.
Aditya P. Mathur, Director
For
Technical Matters:,
Software Engineering Research Center
1398
Department of Computer Sciences
Purdue
University
West
Lafayette, Indiana 47907-1398
For
Administrative Matters
Dr. Michael Forman, Associate Dean
School
of Science
Purdue
University
West
Lafayette, Indiana 47907
To
West Virginia University
Dr.
Ali Mili
For
Technical Matters:
Department of Computer Science and Electrical Engineering
West
Virginia University
Morgantown,
West Virginia 26506-6109
For
Administrative Matters:
Robert David Cowan, Assistant Director
Software
Engineering Research Center
Computer
Science and Electrical Engineering
West
Virginia University
Morgantown,
West Virginia 26506-6109
25. General
Provisions.
(a)
This
Agreement contains the entire understanding between and among the parties with
respect to the subject matter hereof and any representation, promise , or
condition in connection therewith not incorporated herein shall not be binding
on the parties. No modifications to the terms of this Agreement shall be valid
unless made in writing and signed by authorized representatives of the parties
as herein described. It is further agreed that nothing contained in this
agreement shall modify, amend, or supersede any prior or subsequent arrangement
made between Research Members and Industrial Members with respect to activities
outside the scope of this Agreement.
(b)
If
any term of this Agreement is held invalid or unenforceable, such term shall be
considered omitted herefrom and shall not affect the validity or enforceability
of the rest of the Agreement. Failure of any party to force compliance or
exercise power given by this Agreement does not invalidate the Agreement.
(c)
This
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement may not be assigned
by any party without written consent of the other parties.
(d)
No
party to this Agreement shall be held in breech of Agreement for acts of God or
other causes beyond the control of the parties including, but not limited to,
fire, floods, labor disputes, civil disorder, or other unforeseen circumstances.
IN
WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed by their duly
authorized officers as of the day and year set forth next to each signature.
By
____________________________________________________________________
Typed
Name: ___________________________________________________________
Title:
_______________________________ Date Signed ________________________
By
____________________________________________________________________
Typed
Name: ___________________________________________________________
Title:
_______________________________ Date Signed ________________________
By
____________________________________________________________________
Typed
Name: ___________________________________________________________
Title:
_______________________________ Date Signed ________________________