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INDUSTRY-ACADEMIC CONSULTING AGREEMENT
This Agreement is made this _____ day of _________, 201_7_, by and between
(the “Company”), a corporation organized and existing under the laws of the
, and (the “Consultant”), an employee and faculty
member of , an educational institution and charitable corporation
located in (“XXX”).
WHEREAS, the Consultant, as a member of the faculty at XXX
(“XXX”), is permitted to perform limited consulting services for companies, subject to the terms
of Consultant’s employment relationship with XXX and the applicable policies and procedures
of and
WHEREAS, the Company desires that the Consultant provide advice and assistance to the
Company in his or her area of expertise; and
WHEREAS, the Consultant desires to provide such advice and assistance to the Company under
the terms and conditions of this Agreement;
NOW, THEREFORE, the Company and the Consultant hereby agree as follows:
1. Consulting Services
(a) Subject to the terms and conditions of this Agreement, the Company hereby retains
Consultant as a consultant and technical advisor to perform the consulting services specifically
set out in Exhibit A attached to this Agreement and made a part hereof (hereafter referred to as
the “Services”), as said Exhibit may be amended in writing from time to time, and Consultant
agrees, subject to the terms and conditions of this Agreement, render such Services during the
term of this Agreement. Such services shall be limited to the area of expertise described in
Exhibit A (the “Field”), as amended in writing from time to time. Consultant shall render
services hereunder at such times and places as shall be mutually agreed by Company and
Consultant. Consultant’s commitment hereunder shall not exceed ___30___days per __year____.
(b) It is understood that the purpose of the Consulting is to provide periodic review and advice
relevant to certain Company matters, and that neither Consultant nor Company will benefit if
Consultant provides inaccurate advice or commentary based on insufficient information. To that
end, Company shall provide Consultant, in advance of meetings, with accurate, unbiased and
sufficient information for him to review the subject matter thereof, and shall promptly provide
further information that Consultant reasonably deems relevant to forming any pertinent
conclusions relevant to the matter for discussion. It is expressly understood that Consultant has
no fiduciary obligation to Company, but instead a contractual one described by the terms of this
Agreement; that Consultant’s role is to provide independent advice uninfluenced by commercial
concerns; and that service as a Consultant does not require him to be an advocate for Company or
its products in any forum, public or private. Company expressly agrees that under no
circumstances will this role be compromised or inaccurately represented.
2. Compensation and reimbursement.
In consideration of the services to be provided by Consultant to the Company hereunder, the
Company shall pay to Consultant a fixed compensation of RMB . The Company shall
have the complete rights to expense any grant obtained with assistance from the Consultant. In
addition, the Company shall reimburse Consultant for reasonable travel and other expenses
Consultant incurs in connection with performing the Services. To obtain reimbursement,
Consultant shall submit to the President of the Company, or his or her designee, an invoice
describing services rendered and expenses incurred under this Agreement. Company shall
provide any documentation requirements and any travel policy restrictions to consultant in
writing in advance, or be foreclosed from relying on such requirements and restrictions to deny
reimbursement. The Company shall pay to Consultant invoiced amounts within thirty (30) days
after the date of invoice. Company will accommodate Consultant’s request to arrange, at
Company’s expense, for all of Consultant’s travel and accommodations in connection with such
meetings if they occur outside the San Francisco metropolitan area.
3. Independent contractor status.
The parties agree that this Agreement creates an independent contractor relationship, not an
employment relationship. The Consultant acknowledges and agrees that the Company will not
provide the Consultant with any employee benefits, including without limitation any employee
stock purchase plan, social security, unemployment, medical, or pension payments, and that
income tax withholding is Consultant’s responsibility. In addition, the parties acknowledge that
neither party has, or shall be deemed to have, the authority to bind the other party.
4. Indemnification
Notwithstanding any other term of this Agreement, Company shall indemnify, defend and hold
harmless Consultant, and XXX, its corporate affiliates, current or future directors, trustees,
officers, faculty, medical and professional staff, employees, students and agents and their
respective successors, heirs and assigns (the “Indemnitees”), against any claim, liability, cost,
damage, deficiency, loss, expense or obligation of any kind or nature (including without
limitation reasonable attorneys’ fees and other costs and expenses of litigation) incurred by or
imposed upon the Indemnitees or any one of them in connection with any claims, suits, actions,
demands or judgments arising out of this Agreement (including, but not limited to, actions in the
form of tort, warranty, or strict liability).
5. Intellectual Property
(a) Consultant and XXX understand and acknowledge that Company will be providing access to
proprietary and valuable information that Consultant might otherwise not receive. In addition,
those parties also understand that should Consultant, in the course of providing Services, invent
or participate in inventing modifications or improvements to Company technology, Company
reasonably seeks to secure such improvements for its own use and practice. At the same time,
Company understands and acknowledges that Consultant has pre-existing and on-going
obligations to XXX and the sponsors of research at XXX (including obligations under grants,
contracts, collaborative agreements, and a “participation agreement” assigning to XXX all
inventions within the scope of certain policies). These obligations include a duty on the part of
Consultant to disclose and assign to XXX any inventions or other proprietary rights arising
during the course of such employment and any overlapping consulting arrangements (including
this Agreement), and an obligation to ensure that any consulting agreement he enters into is not
in conflict with the XXX Policy on Inventions and Intellectual Property or in conflict with other
XXX commitments, such as Consultant’s obligation to publish research results.
(b) In order to enter into this Agreement with Consultant, Company therefore further
acknowledges and agrees that in the event that any conflict should arise between the duties set
forth in this Agreement and Consultant’s obligations to XXX or sponsors of research at XXX,
Consultant shall necessarily notify XXX immediately, and that Consultant’s obligations to XXX
and sponsors of research at XXX shall take precedence over the terms of this Agreement.
(c) However, the parties agree that it is mutually beneficial that Consultant be able to participate
fully in providing Services, as stated herein, without being obligated to constrain her or his
comments or contributions based upon the complexities of applying these conflicting obligations
to intellectual property ownership. Therefore, in order to reconcile these obligations, and
promote Consultant’s participation, during the term of this Agreement Consultant shall promptly
report and simultaneously disclose to XXX and to the President of Company, or his or her
designee, all inventions, improvements, modifications, discoveries, methods and developments,
whether patentable or not, made or conceived by Consultant, or by employees or agents of
Company under Consultant’s direction, during the performance of this Agreement that result
directly from Confidential Information provided by Company pursuant to this Agreement and
either embody Company technology or are reduced to practice as a modification or improvement
to Company technology (hereby designated “Inventions”). Ownership of such Inventions, and
any patent rights related thereto, shall reside with XXX, if covered by applicable XXX policies,
or otherwise with Company but subject to a mandatory, cost-free license back to Consultant to
use the Invention for academic research purposes. If ownership lies with XXX, then, provided
such Inventions are not subject to prior conflicting obligations to sponsors of research at XXX,
Company shall have an exclusive option, for 120 days following notice of Consultant’s
disclosure, to negotiate an exclusive world- wide license, on reasonable terms customary for XXX,
to use, practice, license and sublicense rights under patents claiming such Inventions within a
mutually agreed field of use. (While the parties believe that conflicting obligations to research
sponsors are unlikely, it is conceivable that in the course of such sponsored research Inventions
useful to Company may emerge; rather than forego disclosing such fortuitous inventions to
Company, to the extent permitted by such sponsorship and related agreements Consultant and
XXX will endeavor to disclose and license such Inventions pursuant to this Agreement.)
(d) The Consultant acknowledges that the Company does not desire to acquire any trade secrets,
know-how, confidential information, or other intellectual property that the Consultant may have
acquired from or developed for any third party, including the Institution (“Third-Party IP”). The
Company agrees that in the course of providing the Services, the Consultant shall not be required
to use or disclose any Third-Party IP, including without limitation any intellectual property of (i)
any former or current employer, (ii) any person for whom the Consultant has performed or
currently performs consulting services, or (iii) any other person to whom the Consultant has a
legal obligation regarding the use or disclosure of such intellectual property.
6. Confidential Information
(a) The parties acknowledge that in connection with Consultant’s Services, the Company may
disclose to Consultant confidential and proprietary information and trade secrets of the Company,
and that Consultant may also create such information within the scope and in the course of
performing the Services (hereinafter, subject to the exceptions below, “Company Confidential
Information”). Such information may take the form of, for example: data concerning scientific
discoveries made by the Company; the Company’s know-how; the Company’s manufacturing
strategies and processes; the Company’s marketing plans; data from the Company’s evaluations
in animals and humans; the Company’s past, present and future business plans; the Company’s
strategy for or status of regulatory approval; or the Company’s forecasts of sales and sales data.
Notwithstanding the above, the Company acknowledges and agrees that none of the information
described in this Paragraph 6 (except Confidential Information created by Consultant) will be
considered Company Confidential Information for purposes of this Agreement, unless the
information is disclosed to Consultant by the Company in writing and is clearly marked as
confidential, or, where verbally disclosed to Consultant by the Company, is followed within
thirty (30) days of such verbal disclosure by a writing from the Company confirming such
disclosure and indicating that such disclosure is confidential.
(b) Subject to the terms and conditions of this Agreement, Consultant hereby agrees that during
the term of this Agreement and for a period of three (3) years thereafter: (i) Consultant shall not
publicly divulge, disseminate, publish or otherwise disclose any Company Confidential
Information without the Company’s prior written consent, which consent shall not be
unreasonably withheld; and (ii) Consultant shall not use any such Company Confidential
Information for any purposes other than consultation with the Company, except that Consultant’s
use of such information for purely internal academic research, without disclosure outside XXX,
shall not be a breach of this Agreement provided that Consultant is not in breach of the
Intellectual Property provisions of Paragraph 5 above. Notwithstanding the above, the Company
and Consultant acknowledge and agree that the obligations set out in this Paragraph 6 shall not
apply to any portion of Company Confidential Information which:
(i) was at the time of disclosure to Consultant part of the public domain by publication or
otherwise; or
(ii) became part of the public domain after disclosure to Consultant by publication or
otherwise, except by breach of this Agreement; or
(iii) was already properly and lawfully in Consultant’s possession at the time it was
received from the Company; or
(iv) was or is lawfully received by Consultant from a third party who was under no
obligation of confidentiality with respect thereto; or
(v) was or is independently developed by Consultant without reference to Company
Confidential Information;
(vi) is required to be disclosed by law, regulation or judicial or administrative process; or
(vii) in the case of information prepared by Consultant, is encompassed within and
derived from Consultant’s academic and professional commitments to XXX, andor any
other consulting or research engagement, provided that Confidential Information
described in this clause (vii) which constitutes Inventions shall be subject to the
intellectual property provisions of Section 5 of this Agreement
(c) Notwithstanding any other term of this Agreement, the Company agrees that it shall not
disclose to Consultant any information which is Company Confidential Information: (i) except to
the extent necessary for Consultant to fulfill Consultant’s obligations to the Company under this
Agreement; or (ii) unless Consultant has agreed in writing to accept such disclosure. All other
information and communications between the Company and Consultant shall be deemed to be
provided to Consultant by the Company on a non-confidential basis. The Company also agrees
that Consultant may share the terms of this agreement on a confidential basis with its employers,
legal and financial advisors, insurers and other third parties who have a legitimate need to know
about them, and that Consultant may disclose the existence and general nature of his consulting
arrangement with the Company with the University, his colleagues and co-workers, and his
collaborators, as well as publishers and audience members at scientific conferences and forums at
which Consultant is speaking or presenting, whenever such disclosures are legally or ethically
required or appropriate. The Company further agrees that Consultant shall not be liable to the
Company or to any third party claiming by or through the Company for any unauthorized
disclosure or use of Company Confidential Information which occurs despite Consultant’s
compliance with Consultant’s obligations under this Agreement.
(d) Upon termination of the Agreement, or any other termination of Consultant’s services for the
Company, all records, drawings, notebooks and other documents pertaining to any Confidential
Information of the Company, whether prepared by Consultant or others, and any material,
specimens, equipment, tools or other devices owned by the Company then in Consultant’s
possession, and all copies of any documents, shall be returned to the Company, except
Consultant may keep one copy of all documents for his or her files (which copy shall be subject
to the confidentiality and non-use requirements set out in this Agreement).
7. Publication
Notwithstanding any other provision of this Agreement, Company understands that Consultant
has primary professional, academic and ethical obligations arising in connection with
Consultant’s positions at XXX and that Consultant is subject to policies of those institutions
which protect academic freedom and preserve ownership of intellectual property rights.
Company agrees that Consultant shall be free to publish within the scope of his or her
professional and academic duties with respect to Consultant’s participation as a Consultant,
provided that Consultant does not reveal Confidential Information. Company therefore agrees
that in the course of her or his professional and academic duties, Consultant may discuss such
participation at conferences, with colleagues, and with students, residents and fellows as
Consultant deems appropriate, without revealing such Confidential Information. In either
context, as well as in the scope of his or her duties under this Agreement, Consultant shall be free
to conduct her- or himself without restraint or improper influence, in accordance with XXX and
Institutional academic, ethical and publication standards. Solely in order to permit Company an
opportunity to determine if Confidential Information or Inventions are therein improperly
disclosed, Consultant agrees to use reasonable efforts to (i) provide to Company at least thirty
days in advance of submission to a journal any substantially complete manuscript that includes
such Confidential Information; (ii) provide notice to Company no later than five working days
before submission for publication or to a conference of any substantially final abstract referring
to such Confidential Information; and (iii) notify Company thirty days in advance of any
conference at which such Confidential Information can foreseeably be revealed. If within that
thirty-day period Company requests a delay in publication so that a patent may be filed on
Inventions disclosed in the manuscript, Consultant will delay publication for up to an additional
sixty days (not to exceed a total of ninety days from the initial submission of a manuscript to
Company). Company agrees to hold all such submissions and information in confidence pending
publication. Company agrees to notify Consultant promptly if any action is necessary to delete
Confidential Information. Company has no other right to request alteration or deletion of any
portion of the manuscript or abstract.
8. Term
(a) This Agreement shall remain in effect for a term of one (1) year commencing on the date first
written above, unless sooner terminated as hereinafter provided, or unless extended by agreement
of the parties and the assent of XXX.
(b) This Agreement may be terminated by either party, with or without cause, upon thirty (30)
days prior written notice to the other; provided that if Consultant terminates this Agreement,
Consultant shall, in accordance with the terms and conditions hereof, nevertheless wind up in an
orderly fashion assignments for the Company which Consultant began prior to the date of notice
of termination hereunder.
(c) Upon termination of this Agreement for any reason, Consultant shall be entitled to receive
such compensation and reimbursement, if any, accrued under the terms of this Agreement, but
unpaid, as of the date Consultant ceases work under this Agreement. In addition, Consultant
shall be reimbursed for any noncancellable obligations, any cancellation penalties, and, unless
Consultant terminates the agreement without cause, any expenditures reasonably made in order
to perform the Services that were to occur had cancellation not occurred.
9. Other Agreements
(a) The Consultant shall use reasonable efforts not to use any facilities, funds, or equipment
owned or administered by the Institution in the performance of the Services, except with the prior
written consent of the Company and in accordance with all applicable policies of the Institution.
(b) Company shall not use Consultant’s name or depiction, or the name, logos, trademarks, or
depictions of XXX, or any officer, director, employee, appointee, medical staff member of
employee of either, or any adaptation thereof, in any promotional, advertising or marketing
literature, or in any other way without the prior written consent of XXX, the individual, or XXX,
as appropriate, provided however that in neutral circumstances that do not imply endorsement or
advocacy, or otherwise misrepresent the terms of this Agreement or Consultant’s role, Company
may accurately state that Consultant is a consultant to Company, and list his or her professional
degrees and titles.
(c) No alteration or modification of this Agreement, including Exhibit A hereto, shall be valid
unless made in writing and executed by Consultant and the Company and assented to by XXX.
(d) The Consultant and Company mutually represent that to the best of their knowledge neither
currently has any agreement with, or any other obligation to, any third party that conflicts with
the terms of this Agreement. The parties agree that they shall not intentionally and knowingly
enter into any such agreement.
(e) The laws of the shall govern this Agreement.
(f) Any notice or other communication by one party to the other hereunder shall be in writing
and shall be given, and be deemed to have been given, if either hand delivered or mailed, postage
prepaid, certified mail (return receipt requested), or transmitted by facsimile, addressed as
follows:
If to Consultant:
__________________________________________
__________________________________________
__________________________________________
If to the Company:
__________________________________________
__________________________________________
__________________________________________
(g) The parties acknowledge that the Services are personal in nature, and that from Consultant’s
perspective the specific identity of the Company, including its leadership, corporate culture,
scientific staff and reputation, is material to Consultant’s choice to enter into this Agreement.
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