Preferred Terms

The Office of Sponsored Programs (OSP) working with Principal Investigator (PI) negotiates the terms and conditions of the sponsored research agreement.

OSP is the only office authorized to conduct negotiations and always involves the Principal Investigator in the process. Under no circumstances should the PI sign a sponsored research agreement.

Confidentiality

The confidentiality term of the research agreement makes clear what information the parties agree not to disclose. As an educational institution, WVU generally seeks to create & share knowledge. Confidentiality terms in an agreement are reviewed for several important reasons including but not limited to the ability to publish, for example, if the definition of what is considered confidential is too broad, we lose the ability to publish, whether or not the Export Control regulations apply, who owns the rights to Intellectual Property and the right to use Data resulting from the Agreement.

The following are exceptions to what is considered confidential information, and OSP negotiates the following exceptions into each research agreement:

1. information that is or later becomes generally available to the public,
2. obtained by a third party who has the legal right to disclose the information,
3. information that is in the possession of the Institution prior to entering into the research agreement,
4. information independently developed by the Institution, and
5. information that is required to be disclosed by law.

Publication

Institutions of Higher Education usually do not give up the right to publish freely, and as such, we seek to negotiate into every research agreement WVU has the right to publish or disclose the results arising from the project subject to the provisions of confidentiality. The definition of confidentiality as you may recall is negotiated so that is not so overly broad as to limit WVU’s ability to publish. We also agree that the text of any such publication is first submitted to Sponsor for review and comment at least thirty (30) days prior to submission for publication or other disclosure. If a research agreement grants the sponsor a pre-approval right over research publications, or grants the sponsor a right to pre-publication review for matters other than inclusion of patent and/or proprietary information, then the project must be reviewed for compliance with the Export Control Regulations.

It is also important that we maintain the right to acknowledge the existence of the sponsored project/agreement through our standard reporting practices. The information is very general in nature, and contains a Project Title, Sponsor name, and period of performance, Principal Investigator’s name, department, college and potential dollar amount. The report is not considered to be promotional or an advertisement as no one project is singled out.

Export Controls

If a research agreement grants the sponsor a pre-approval right over research publications, or Grants the sponsor a right to pre-publication review for matters other than inclusion of patent and/or proprietary information, then the project must be reviewed for compliance with the Export Control Regulations. In addition to publication restrictions, each agreement is reviewed for the following terms and conditions to determine, if the project needs to be reviewed for Export Control compliance: References to U.S. export control regulations

1. references to U.S. export control regulations
2. prohibits access by non-U.S. citizens to project information,
3. restricts non-U.S. entity participation based on country of origin,
4. prohibits hiring of non-U.S. citizens for the project,
5. addresses the use of proprietary information,
6. allows the sponsor to claim resulting research information as proprietary or trade secret, or
7. delays publication of project results for 1 year or more.

If any of these terms are included in the agreement an Export Control Certification Form, the OSP will notify the Principal Investigator of the grant or contract in question that an export control screening is required. The OSP will forward a copy of the statement of work of the flagged grant or contract to the Export Control Office (ECO) and instruct the Principal Investigator to contact the ECO to facilitate an export control screening of the project. If it is determined that the project is not subject to the export control regulations, the Export Control Certification Form is signed by the PI & returned to OSP. An Export Control Plan is not developed. If it is determined that the project is subject to the export control regulations, an Export Control Plan is developed. A summary of this information will be included on the Award account set-up sheet (Green Sheet).

Intellectual Property

Terms establish which party owns intellectual property that may be developed as a result of the sponsored research project. WVU generally has a preference to either own, or jointly own, new IP that is created. The preferred term is that all right, title, and interest to all industrial property and intellectual property including, but not limited to, inventions, improvements, discoveries, patentable materials, copyrightable materials, trademarks, trade secrets, technology, machinery, hardware, software, know-how, methods, data, documents, materials, tests, and all other intellectual or industrial property and improvements thereto, which are conceived and/or made by one or more employees, agents, contractors, or students of WVU or WVURC in the performance of this Agreement, shall be owned by WVURC. However, in some instances these rights are given up. OSP will work with Principal Investigator to determine, if it is acceptable, to relinquish the rights to intellectual property, and some additional paperwork may be required from the Principal Investigator.

The intellectual property terms of a Sponsored Research Agreement may also include licensing rights. WVU seeks to maintain ownership of, or the right to use, data that is created as a result of a sponsored research project. The preferred term is Institution shall be permitted to use any data resulting from the Scope of Work and this Agreement for internal non-commercial educational, research and for purposes of publication.

Liability and Insurance

Most research agreements contain a liability term which addresses responsibility between WVU and its Sponsor of research, if third party (a party other than WVU or its Sponsor) claims damages result from the research activities. WVU is precluded by state law from entering into a contract of indemnity. The preferred term is that WVU will be responsible for any and all claims, demands, judgments, liabilities, losses, damages, costs, expenses or other amounts resulting from claims solely to the extent attributable to any negligent or wrongful act or omission or willful malfeasance of the WVU.

Additionally, research agreements often contain a term which states the coverage provided by both WVU and the Sponsor. WVU purchases general liability insurance from the WV Board of Risk & Insurance (BRIM). The issues of liability and risk management can be complex. If you have questions about the risks associated with your project and the insurance coverage required by your research agreement, please contact OSP.

Warranty

Warranties are written guarantees that the product or service conforms to a particular outcome. Because the nature of the work covered by sponsored projects is usually research, no warranty is given or implied.

Governing Law

The Attorney General for the State of West Virginia is of the opinion that all state agencies entering into contracts must assure that the agreement is governed by the laws of West Virginia. Specifically, the West Virginia State Constitution, Article VI, Section 35 states that “The state of West Virginia shall never be made a defendant in any court of law or equity, except the state of West Virginia, including any subdivision thereof, or any municipality therein, or any officer, agent, or employee thereof may be made defendant in any garnishment or attachment proceeding, as garnishee or suggestee.” If this agreement cannot be governed by the laws of the State of West Virginia, then ask that we remain silent on the issue. The preferred term is that the agreement has been made under, and shall be construed and interpreted in accordance with the laws of the State of West Virginia.

Disclaimer:

This information is intended for educational purposes only, and is not intended as legal advice. It does not replace professional judgment.

Each situation is unique, and the associated risk should be assessed according to the individual circumstances.