Guidance Note for clause 5. 2: The Commercialisation Business Plan is a separate document (not attached to this Agreement). It should be agreed by the parties prior to the Commencement Date, and should set out more detail of the process that will be used to Commercialise the Licensed IPR.
Guidance Note for clause 5. 3: At the end of the Agreement, the University must destroy or return Collaborator Material either as specified in the Project Plan or as directed by the Collaborator. In providing Material, the Collaborator should be aware that this Material may be altered, damaged or destroyed as a result of the Project.
Guidance Note for clause 5. 2: This clause clarifies that if the Collaborator is required to provide Collaborator Material for the Project, the University does not need to commence or continue a part of the Project until the Collaborator provides the Material needed for that part. The Material provided by the Collaborator must be safe and suitable for the Project. University’s receipt and use of Collaborator Material
Guidance Note for clause 5. 5: This Agreement requires each party to provide IPR to the other party (for example, material, data, products) to undertake the Project and this clause requires the party providing the IPR to promise to the other party that, as far as it is aware, that it has the rights to provide the IPR on the terms of this clause 5. Universities should note that the warranty will apply to any IPR developed by Students that the University is required to license to the Collaborator.
Guidance Note for clause 5. Where the Licensee is granted a Commercialisation right, it is important that the Licensee exercises this right in a way that maximises the Fees and promotes the Products incorporating the Licensed IPR. The specific performance measures relevant to the transaction can be agreed by the parties in Schedule 4. These measures should reflect the intentions of the parties, including recognising that this template is granting exclusive rights. See further the guidance in Schedule 4. Performance
Guidance Note for clause 5. 3: Performance Criteria are intended to be clear, measurable achievements. This clause seeks to balance the consequences of failing to meet the Performance Criteria for both the Licensee and Licensor. Often the reason for failing to meet Performance Criteria is complex. Accordingly, the clause reflects a process to manage Licensee performance fairly. The initial consequences of a failure to meet the Performance Criteria are management actions that can be initiated by the Licensor (see clause 5.3(b)) to seek to explore why there has been a failure. If the management of these failures does not resolve the issues, the onus can be placed on the Licensee (see clause 5.3(c)) to either give up rights to the Licensed IPR, put in place mitigations, or compensate the Licensor for the revenue they would have otherwise obtained. Further guidance on the Performance Criteria is included in Schedule 4. Consequences of failure to achieve Performance Criteria
Guidance Note for clause 5. 1(c): There is no right for either party to amend the Performance Criteria, but the template encourages discussion and collaboration to ensure these remain appropriate. At the request of either party, the parties will meet in good faith to review and discuss the Performance Criteria to ensure they remain appropriate and within the reasonable ability of the Licensee to achieve. Any amendment to the Performance Criteria must be agreed in accordance with clause 19.4.
Guidance Note for clause 5. 2: This clause allows the parties to specify the Owner and Licensee of the IPR in Project IP in the Details Schedule (see items 7 and 8 of the Details Schedule). The licence granted under these clauses allows the Licensee to Use the Project IP for the Purpose (refer to clause 1 definition of 'Use' and item 10 of the Details Schedule).
Guidance Note for clause 5. This clause makes it the Assignee's responsibility (and at its cost) to notify IPR registers of the transfer of the IPR in the Property.
Guidance Note for clause 5. 4(c): Reasonable commercial terms should take into account the current and projected value of the applicable IPRs and each party's contribution to the Project (whether financial or otherwise). Any reference in this clause 5.4 and the Details Schedule to reasonable commercial terms requires regard to be given both to the value of the applicable IPRs and the respective contributions of the parties to the Project.
