AGREEMENT ON INDUSTRIAL PHD - Universiti Sains Malaysia 9 - industrial phd agreement.pdf · Legal...

AGREEMENT ON INDUSTRIAL PHD

BETWEEN

UNIVERSITI SAINS MALAYSIA

AND

ABC

Legal Office Universiti Sains Malaysia ~ PP9 Page 1

AGREEMENT ON INDUSTRIAL PHD

THIS AGREEMENT ON INDUSTRIAL PHD is made this day of , 20

(hereinafter referred to as “Agreement”);

BETWEEN

UNIVERSITI SAINS MALAYSIA, a public institution of higher learning established under the

Universities and University Colleges Act 1971 which for the purpose of this Agreement is

represented by its Institute of Post-Graduate Studies and having its main campus at 11800

USM, Pulau Pinang, Malaysia (hereinafter referred to as “USM”) of the first part;

AND

ABC (Company No. ..............……..), a company incorporated under the Malaysian

Companies Act 1965 and having its principal place of business

at ...................................................................................... (hereinafter referred to as “the

Company”) of the second part.

(USM and the Company shall hereinafter be collectively referred to as “Parties” and

individually as “Party”, where the context so requires)

WHEREAS

A. USM is Malaysia’s premier research university which strives to enhance and

strengthen its educational programs and has taken various initiatives to complement

its educational excellence. With its research and teaching facilities, experience, and

a multi-disciplinary team of experts from among its staff members, USM has entered

into various collaborative arrangements with other parties in its effort to enhance its

research contents and strengthen its industrial networking.

B. The Company is a company involved in ................................................

C. The Ministry of Higher Education (hereinafter referred to as “MOHE”) has introduced

MyBrain 15 initiative under the National Institution of Higher Learning Strategic Plan


to create highly educated workforce as catalyst for research and innovation.

Programs under MyBranin 15 include Industrial PhD which is opened for participation

by employees in private sectors. USM is a recognised institute of higher learning for

the Industrial PhD program.

D. The Company is desirous of enrolling its employee, [ name of student ] [NRIC:........ ]

(hereinafter referred to as “Student”) to register as a student of USM and pursue the

PhD studies in [ ................................ ] and to carry out fundamental research on

[ ........................... ] and any other research to be mutually agreed upon by the

Parties.

E. The Company agrees that the Student shall be registered as a full time student at

USM and shall be subject to all rules and regulation of USM as well as the guidelines

and/or policy on the Industrial PhD program as set by MOHE, and any amendments

thereto as decided by MOHE from time to time.

F. USM agrees to accept the Student as a full time student of USM and for the purpose

of the Project (as hereinafter defined), USM shall nominate a suitable lecturer to

supervise the Student.

NOW THEREFORE, THE COMPANY AND USM HEREBY AGREE AS FOLLOWS:

Clause 1 – Definitions and Interpretations

1.1 In this Agreement, unless the context otherwise requires, the following terms shall

have the following meanings:

“Confidential Information” means any and all technical and non-technical

information including patent, copyright, trade secret,

know-how and proprietary information, techniques,

sketches, drawings, diagrams, methods, processes,

apparatus, equipment, algorithms, software

programs, software source documents, and formulae

related to a technology or invention, and includes,


without limitation, its respective information

concerning research, experimental work,

development, design details and specifications,

engineering, financial information, procurement

requirements, purchasing manufacturing, customer

list, business forecasts, sales and merchandising

and marketing plans and information designated in

writing to be confidential or by its nature intended to

be for the sole knowledge of the receiving party or if

orally given in the circumstances of confidence or

confirmed promptly in writing as having been

disclosed as confidential or proprietary for the

Purpose; that is conveyed by the disclosing party to

the receiving party, in written, oral, digital, magnetic,

photographic and/or whatsoever forms.

“Company’s Intellectual

Property”

means pre-existing and/or background Intellectual

Property owned or developed by the Company, or its

parent or its related companies worldwide, with no

facilities, contribution, involvement or support by

USM as to its development and any Intellectual

Property developed outside the scope of this

Agreement.

“Intellectual Property” means:

(a) Inventions; manner, method or process of

manufacture; method or principle of

construction; or design; plan, drawing or design;

or scientific, technical or engineering information

or document;

(b) Improvement, modification or development of

any of the foregoing;

(c) Patent, application for a patent, right to apply for

a patent or similar rights for or in respect of any

intellectual property referred to in paragraph (a)


or (b);

(d) Trade secret, know-how, confidential

information or right of secrecy or confidentiality

in respect of any information or document or

other intellectual property referred to in

paragraph (a) or (b);

(e) Copyright or other rights in the nature of

copyright, including the Project thesis, clauses,

journal and conference papers, subsisting in

any works or other subject matter referred to in

paragraph (a) or (b);

(f) Registered and unregistered trademark,

registered design, application for registration of

a design, right to apply for registration of a

design or similar rights for or in respect of any

work referred to in paragraph (a) or (b);

(g) Any Intellectual Property in addition to the

above which falls within the definition of

intellectual property rights contained in Clause 2

of the World Intellectual Property Organisation

Convention of July 1967; and

(h) Any other rights arising from the thesis of the

Project and other intellectual activities in the

scientific, literary or artistic fields,

Whether vested before or after the date of this

Agreement and whether existing in Malaysia or

otherwise and for the duration of the rights.

“New Intellectual Property” means Intellectual Property conceived, improved or

reduced to practice or writing by the Student during

the Project, including the Project thesis, journal,

publication etc..

“Project” means the Industrial PhD program of joint research


activities between USM and the Company on the

subject field as agreed upon by the Parties, subject

always to the guidelines and/or policy as set up by

MOHE.

“Project Period” means the period of studies of the Student in

accordance to the Letter of Offer issued by USM or

any period as may be mutually agreed upon by the

Parties herein for the Project.

“USM’s Intellectual

Property”

means pre-existing and/or background Intellectual

Property owned or developed by USM with no

facilities, contribution, involvement or support by the

Company or the Student as to its development and

any Intellectual Property developed outside the

scope of this Agreement.

1.2 Any monetary references shall mean the Malaysian currency.

Clause 2 – Research Project Work

2.1 The Student shall commence the Project upon execution of this Agreement and shall

use reasonable efforts to perform such Project substantially in accordance with the

terms and conditions of this Agreement. The Company and USM may at any time

change the scope of the Project by mutual written agreement.

2.2 In the event that the Student become unable or unwilling to continue the Project, and

a mutually acceptable substitute is not available, USM shall have the absolute

discretion and option to terminate the Project.

2.3 The supervisors/professors of USM involved in the Project shall provide academic

and research advice and shall supervise the Student throughout the Project Period.

2.4 USM has the absolute right to register the Student for the Project subject always to

the admission requirements and criterias of USM.


2.5 USM and the Company shall plan and approve the Student’s complete Project’s

programme, and USM shall award the PhD degree if the requirements for the Project

have been met in accordance to USM rules and regulations. The Project shall be

completed in accordance with the rules for Industrial PhD students as applicable

from time to time, including MOHE’s guidelines and/or policy for the Industrial PhD

program.

Clause 3 – Funding

3.1 USM shall be provided with financial assistance by the Company and MOHE in

conducting the Project research on the areas mentioned herein (hereinafter referred

to as “the Funding”).

3.2 The Funding from MOHE may only cover the following costs:

i. supervision costs (Kos Penyeliaan)

ii. studies costs (Kos Pengajian)

iii. Training Supervision costs (Kos Latihan Penyeliaan)

iv. Panel Exam costs (Kos Pemeriksaan Panel)

v. Conferment of degrees (Penganugerahan Ijazah)

subject always that the maximum amount of the Funding from MOHE for the costs of

items i-v above shall not exceed RM50,000.00.

3.3 The Company shall provide the Funding to the Student as agreed between them and

USM shall not interfere with such arrangement between the Company and the

Student, unless otherwise agreed between the parties.

3.4 The Company hereby undertakes that it shall pay for the part of the costs in the

estimated sum of RM[ ]for the Project education and material not covered by

MOHE.

Clause 4 – Intellectual Property

4.1 Nothing contained in this Agreement shall be deemed to grant either Party either

directly or indirectly or by implication, estoppels or otherwise any license under any


patents, patent applications or other proprietary interest over any Intellectual

Property of either Party.

4.2 All rights over any New Intellectual Property by the Student arising from the Project

shall be vested in USM in accordance to USM Intellectual Property Policy.

4.3 All rights, titles and interests over USM’s Intellectual Property used to produce any

product which forms the New Intellectual Property, shall continue to belong to USM;

and the Company shall not have any claim on them.

4.4 Where it is established that any USM’s Intellectual Property is a requirement for the

New Intellectual Property, adequate remuneration entitled to USM for such usage of

USM’s Intellectual Property shall first be agreed by the Company and USM in writing.

4.5 The Company agrees that USM shall reserve a royalty-free, non-exclusive licence to

use the Company’s Intellectual Property and/or the results of the Project internally,

whether patented or registered by the Company, in connection with USM’s research

and teaching subject to restrictions on publication and confidentiality as set out

respectively, for the purpose of completion of the Project.

Clause 5 – Rights to Publish

5.1 The data and information accruing from this Agreement may be published by USM in

accordance with USM Intellectual Property Policy respecting the same. The

Company may be provided with a copy of any proposed publication at least twenty-

one (21) days prior to submission for review of patentable items or items deemed

confidential as defined in clause 6 herein. The purpose of this clause is to further

protect the rights of USM and the Company in the protection of any contemplated

publication concerning details of an invention or the Company’s Confidential

Information as defined in the clause 6 herein

5.2 If deemed reasonably necessary by USM and/or the Company to protect such

interests, any contemplated publication concerning details of an invention, etc, may

be withheld until a patent application is filed or other appropriate steps to protect the

commercial value have been contemplated.


5.3 Notwithstanding clause 5.2 above, in no event shall any publication be delayed

exceeding twelve (12) months from the date the proposed publication is provided to

the Company, but such publication shall not include the Company’s Confidential

Information as reasonably determined by the Company and communicated to USM

within the twenty-one (21) day review period referenced in clause 5.1 above.

5.3 In all publications arising out of this Agreement, USM and/or the Student may

acknowledge the contribution and technical support of the Company.

Clause 6 – Confidentiality

6.1 Either Party shall not disclose or cause to be disclosed any Confidential Information

revealed to the other Party without the prior written approval of the disclosing Party.

6.2 USM shall also inform the Student of the terms and conditions of this Agreement and

the Student shall automatically be subjected to all USM rules and regulation as a full

time student of USM, and of the obligations to maintain the Company’s and USM’s

Confidential Information in confidence. Likewise, the Company shall also inform its

personnel of the terms and conditions of this Agreement and of their obligations to

maintain the Company’s and USM’s Confidential Information in confidence.

6.3 Each Party shall hold in confidence all Confidential Information disclosed by the

other Party in writing and marked confidential under this Agreement except where

such:

i. Confidential Information which at the time of disclosure is in the public

domain;

ii. Confidential Information which after disclosure is published or otherwise

becomes part of the public domain through no fault of the receiving Party;

iii. Confidential Information which was in the possession of the receiving Party

at the time of disclosure and was not acquired under an obligation of

confidence to the disclosing Party with respect thereto; and


iv. Confidential Information which is disclosed subsequently to the receiving

Party by another party and not acquired by such third party under an

obligation of confidence to the disclosing party with respect thereto.

Clause 7 – Term and Termination

7.1 This Agreement shall become effective on the date first above written regardless of

the diverse dates the Parties may have signed this Agreement and shall continue in

effect until the end of the Project Period.

7.2 In the event that any Party hereto commits any breach or default in any of the terms

or conditions of this Agreement, and fail to remedy such default or breach within

thirty (30) days after receipt of a written notice thereof from the non-defaulting Party,

the non-defaulting Party may, at its option and in addition to any other remedies

which it may have at law or in equity, terminate this Agreement by giving a written

notice of termination to the defaulting Party, and such termination shall be effective

as of the date of receipt of such notice PROVIDED ALWAYS that any termination

arising from this clause shall not prejudice the right of the Student to complete

his/her Project studies.

Clause 8 - Assignment

Neither Party shall be entitled to assign this Agreement, in whole or in part, or any of its

rights and obligations under this Agreement without the prior written consent of the other

Party.

Clause 9 - Relationship Of The Parties

Nothing in this Agreement shall be construed as establishing or creating a partnership or a

relationship of master and servant between any of the Parties hereto or as constituting any

party as an agent or representative of the other Party for any purpose or in any manner

whatsoever.


Clause 10 – Entire Agreement

This Agreement shall constitute the entire agreement between the Parties hereto with

respect to the Project and shall supersede all prior or contemporaneous representations,

agreements and promises, written or oral, between the Parties with respect to the Project.

Clause 11 - Modifications

This Agreement shall not be amended, altered, changed or otherwise modified without the

mutual consent of the Parties hereto and such amendments, alterations, changes or

modifications shall be made in writing and signed by the Parties hereto.

Clause 12 – Notices

Any notice or communication between the Parties shall be delivered to the address, or sent

to the facsimile number or emailed to the following:

For USM:

Address

Telephone no.

Facsimile no.

Contact person

Email address

[ School address ]

...............................................

...............................................

...............................................

[ to be nominated by the School ]

For ABC:

Address

Telephone no.

Facsimile no.

Contact person

Email address

...............................................

...............................................

...............................................

...............................................


Clause 13 - Severance

Notwithstanding that any provision of this Agreement may prove to be illegal or

unenforceable, the remaining provisions of this Agreement shall continue in full force and

effect.

Clause 14- Legal Costs

Each Party shall bear its own legal costs in the preparation and execution of this Agreement.

Clause 15 – Governing Law

This Agreement shall be governed and construed in accordance with the laws of Malaysia.

Clause 16 – Successors Bound

This Agreement shall be binding on the Parties and their respective successor-in-title and

permitted assigns.

Clause 17 – Name, Official Emblem and Logo

17.1 Neither Party shall use, nor permit any person or entity to use the name, acronym,

official emblem, logo, trade mark (or any variation thereof) or other Intellectual

Property (hereinafter referred to as “Brand Materials”) that is/are identified with or

belongs to the other Party on any publication, document, paper, audio or visual

presentation, or for publicity purposes.

17.2 Any use of the Brand Materials for the purposes stated in clause 17.1 above shall

first obtain the written consent of the other Party and shall comply with all reasonable

instructions as to the use of the other party’s Brand Materials.


Clause 18 - E-Communication and Signature

The Parties hereby consent to electronic communication and electronic signatures being

equal to signatures inked on paper. The Parties acknowledge and agree that electronic

communication is an acceptable method of communicating information from a Party to the

other party without having to communicate the same on paper. Any communication and

subsequent electronic signature that has been sent or signed in the past, present, or future

between the Parties will hold the same force and effect as a document signed and inked on

paper.

(the remainder of this page is intentionally left blank)


IN WITNESS WHEREOF the Parties hereto have hereunto set their hands the day and year

first abovewritten.

SIGNED BY for and on behalf of UNIVERSITI SAINS MALAYSIA ................................................................... PROFESSOR DATO’ DR. OMAR OSMAN Vice-Chancellor

SIGNED BY for and on behalf of ABC SDN BHD ................................................................ [ name & designation ]

In the presence of: ……………………………………………… [name & designation ]

In the presence of: ……………………………………………… [name & designation ]

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