AGREEMENT OF COOPERATION BETWEEN UNIVERSITIES

Goal

Establishment of a program of exchange and collaboration in areas of interest and benefit to both institutions.

Purposes  

• to promote interest in the teaching and research activities of the respective institutions, and
• to deepen the understanding at each institution of the economic, cultural and social issues relating to its counterpart.

Types of Cooperation

• promote institutional exchanges by inviting faculty and staff of the partner institutions to participate in a variety of teaching and/or research activities and professional development;
• receive students of the partner institution for periods of study and/or research. Acceptance of any students is at the discretion of the institution providing the learning experience, and that visiting students are responsible for their  own living expenses and are subjects at all times, to the policies and regulations of the supervising school and community.  
• organize symposia, conferences, short courses and meetings on research issues;
• carry out joint research and continuing education programs; and
• exchange information pertaining to developments in teaching, student development and research at each institution.

Each department within the respective institutions desiring to participate in an exchange  designates a coordinator to oversee and facilitate the implementation of the Agreement.  The coordinators, working with other appropriate administrators at the respective universities, have the following responsibilities:

• to promote academic collaboration at both faculty and graduate student levels for research and study;
• to act as principal contacts for individual and group activities and to plan and coordinate all departmental activities for which cooperation with the partner institution is desired;
• to distribute to each institution information about the faculty, facilities, research, publications, library materials and educational  resources of the other institution; and
• if deemed desirable, to meet periodically to review and evaluate past activities and to work out new ideas for future cooperative agreements.

The scope of the activities under the agreement is determined by the funds regularly available at both institutions for the types of collaboration undertaken and by financial assistance as may be obtained by either institution from external sources. No specific financial commitment by either party is to be implied from this agreement.

Each institution is responsible for expenses incurred by its employees under the agreement.

Partner university may not use the name “Cooperating Institution” or the name of any school or division thereof, or use any logo or insignia of or otherwise identify XXX or any school or division thereof, in any form of publicity or disclosure without the prior written consent of XXX, which consent may be withheld or granted by XXX in its sole and complete discretion at any time or times.

Pre-contractual agreements

An international collaboration may typically involve up to three short agreements before the main collaboration agreement is entered into. These agreements are:

1. a Memorandum of Understanding
2. a Confidentiality Agreement and
3. an Exclusivity Agreement.

A Memorandum of Understanding is a document setting out the parties’ broad understanding of the essential elements which will later be agreed. A Confidentiality Agreement will ensure that neither party may disclose sensitive information about the proposed collaboration without the other party’s agreement. An Exclusivity Agreement prevents the parties from entering into negotiations with any other institution over a collaboration such as the one which is under discussion. Not every collaboration requires all three agreements to be entered into. In many cases the three agreements can be incorporated into one document, although if this option is chosen, the institutions should be clear as to which parts of the agreement will have legal force and which will not.

Memorandum of understanding

Once the institutions know the basic framework for the proposed collaboration, this should be set out in a Memorandum of Understanding. This document may or may not be legally binding, as the parties wish although it may inadvertently become binding. This document helps to ensure at an early stage that the institutions both require the same outcome for the collaboration and that any potential deal breaking difficulties are raised as soon as possible. A Memorandum of Understanding has no set form and it is a matter of both preference and practicality as to whether it contains details of the parties’ proposals or whether it simply contains the main points necessary to move the negotiations forward. As a general rule, the Memorandum of Understanding should at the very least cover the key terms of the transaction. Drafting issues can be debated further down the line and should be avoided at this early stage.

A Memorandum of Understanding is not designed to set out the finer details of a collaboration. For this reason, it is never appropriate to rely only on a Memorandum of Understanding. As soon as a Memorandum of Understanding has been agreed, it is important to use this positive momentum to agree a more detailed collaboration agreement. A collaboration based only on a Memorandum of Understanding will not adequately cover potential risks. Although there is always an argument for not having a Memorandum of Understanding and to proceed with negotiating the collaboration agreement straight away in order to avoid time and expense, experience shows that international collaborations often take time to negotiate and that the legal documents supporting the collaboration can often become complex, even more so when the parties are unclear of their obligations under the collaboration. It is often tempting for the parties to draw up a Memorandum of Understanding themselves on the basis that it details the commercial reality, and not the legal practicality of the transaction, but this could be a costly mistake and proper advice should be sought. The Memorandum of Understanding is the cornerstone on which the parties can negotiate, and ultimately sign, the collaboration agreement. It also acts as a checklist in ensuring that all the key terms have been incorporated into the collaboration agreement. By considering difficult or controversial aspects of an agreement from the outset, the parties can ensure that they are working to the same end and that lengthy legal arguments may be avoided at a later stage. A Memorandum of Understanding can be used to set a timetable for the transaction, giving the parties a definite steer as to what needs to be done and when. The document will also prove useful as a basis for administrative preparation for the collaboration, such as being used as the basis for tax clearance submissions.

Confidentiality Agreement

In an international collaboration between two higher education providers, it is advisable for the parties to negotiate a Confidentiality Agreement prior to entering into any formal discussions. Again, it is arguable what weight a Confidentiality Agreement carries as they can be difficult to enforce, but experience tells that a Confidentiality Agreement can help to focus the minds of the parties in having proper procedures in place to protect the confidential information that will be divulged to each other during the due diligence procedure. In addition to preventing the other party from disclosing any confidential information, the agreement should seek to set minimum standards for ensuring that information is kept secure. It may also seek to prevent either institution from publicly discussing the collaboration or from making any announcements about it without the consent of the other party. Finally, some confidentiality agreements are used to reduce the possibility of either party poaching key personnel from the other. If a long due diligence process will be entered into, both institutions could receive information on key staff of the other. The Confidentiality Agreement may be used to ensure that one party does not offer employment to key, named personnel of the other. Such an agreement cannot be used to prevent the staff themselves from moving (this would be both a restraint of trade and run contrary to principles of academic freedom), although the parties may limit each other from actively approaching those staff.

Exclusivity agreement

Another subject to consider at the onset of entering into an international collaboration is whether an exclusivity or lock-out agreement is essential to the transaction. An Exclusivity Agreement seeks to ensure that the other party does not enter into any negotiations with other parties which could impact upon the transaction. Whether or not an Exclusivity Agreement can be negotiated depends on the bargaining strength of the parties to the transaction. If one of the university has the stronger bargaining position, then it should seek to ensure that the other party signs up to an Exclusivity Agreement as this will provide it with added security. An Exclusivity Agreement will require careful drafting in order to be legally binding. For example, whilst an agreement not to negotiate with others should be binding if its terms are definite enough, an agreement to negotiate is unlikely to bind the parties. The remedy for breach of an Exclusivity Agreement is likely to be damages for wasted costs, rather than loss of profit caused by the joint venture not proceeding. So, if a party breaches an Exclusivity Agreement, the likely award to the injured party is unlikely to be large

Collaboration Agreement

The Collaboration Agreement identifies the key terms and obligations of the parties. It is the document which regulates the collaboration. The Memorandum of Understanding is typically used as the basis for drafting the Collaboration Agreement. One of the keys to drafting a successful Collaboration Agreement lies in ensuring that there are good levels of co-operation between the lawyer drafting the agreement and the manager in charge of the collaboration. There are a number of risks which a lawyer can mitigate without any need for input from the institution, but it remains the case that the Collaboration Agreement will be most effective if it is drafted with this specific collaboration in mind. For this reason, it is almost never appropriate to use an off-the-shelf agreement for an international collaboration. There is a plethora of issues which will need to be addressed in the Collaboration Agreement. Each collaboration will have its own peculiarities and so its own inherent risks. For this reason, any or all of the issues below could expose the institutions to significant liability. The following issues will always be of paramount importance though. Who are you contracting with?  For how long are you contracting, and how can you terminate the agreement early if necessary? Who is doing what? Who is paying what? What standards (such as academic, health and safety, regulatory and legal) must the parties meet, and can the agreement be terminated if they are not met?