4. PROGRAMME MANAGEMENT AND PROGRAMME AUDIT
4.1 PTC shall appoint a Programme manager from its Staff who shall be responsible on a day-to-day basis for co-ordinating the internal and external components of the Programme.
5. THE RESEARCH STEERING GROUP
5.1 As soon as practicable following the Commencement Date, the Trust and PTC shall establish a Research Steering Group (“RSG”) to oversee the Programme, which shall:
(a) monitor the performance and technical content of the Programme against the description outlined in the Application;
(b) assess the ongoing results of the Programme and what has been learnt and agree future research;
(c) critically assess the results of the Programme;
(d) identify and address any weaknesses or delays in the Programme;
(e) co-ordinate internal and outsourced components of the Programme, including agreeing on whether to pursue any collaborations or subcontracts not specifically identified in the Application;
(f) modify or authorise modifications to the implementation of the Programme (including the implementation of the Programme objectives) as necessary from time totime;
(g) operate as the key forum through which the Trust shall be informed as to progress of the Programme and through which the Trust shall liaise with PTC concerning the conduct of the Programme, including preparing an annual written report for the Trust on progress;
(h) advise the Trust when and whether each of the research phases, Milestones or targets of the Programme have been achieved; and
(i) review all proposed public disclosures relating to the Programme, including proposed presentations, posters and papers (ensuring that the contribution of the Trust is acknowledged in all such proposed publications and that the Trust’s Award number is quoted) and advise the Trust as to the RSG’s reasonable recommendations in respect of such proposed publications;
provided that the RSG shall have no right to amend or vary the terms of this Agreement or to alter the fundamental scope or objectives of the Programme which power is reserved to the Parties.
5.2 The RSG shall be established and run by the Parties as follows:
(a) The RSG shall comprise the following persons (“Members”):
(i) [**] representatives of PTC, one of whom shall be the Principal Investigator;
(ii) at least one independent industry adviser with experience which is relevant to the Programme;
(iii) [**] representatives or nominees of the Trust’s Technology Transfer Division (at the Trust’s option).
(b) The Trust shall have the option to appoint up to [**] Members and up to [**] observers to the RSG, to remove any Member or observer appointed by it and to appoint any person to fill a vacancy arising from the removal or retirement of such Member or observer. In the event that the Trust does not appoint any Member or observer, the Trust shall have the right to receive all papers that a Member or observer would be entitled to receive.
(c) PTC shall have the option to appoint up to [**] Members and up to [**] observers to the RSG, to remove any Member or observer appointed by it and to appoint any person to fill a vacancy arising from the removal or retirement of such Member or observer; provided, that the Principal Investigator shall always be one of PTC’s Members.
(d) PTC and the Trust shall jointly agree the identity of the Members of the RSG who are independent industry adviser(s). The costs and expenses of the independent industry adviser(s) shall be met out of the Award Amount.
(e) The Principal Investigator shall be the chairperson of the RSG (“RSG Chair”) and shall be responsible for organising meetings of the RSG, including preparing papers prior to meetings and ensuring that minutes of meetings are produced promptly after each meeting. All papers and minutes shall be circulated to each Member in a timely manner. Except in exceptional circumstances (when the Principal Investigator may nominate another person as his alternate), the Principal Investigator shall attend all RSG meetings.
(f) The quorum for RSG meetings shall be [**] Members including a [**]. Decisions of the RSG shall be made by majority agreement with each Party entitled to cast one (1) vote regardless of the number of Members present. If the RSG is unable to reach agreement on a decision, the decision shall be escalated to the Director of Technology Transfer at the Trust and the head of Discovery Research at PTC for resolution. For the avoidance of doubt, any observers appointed by the Parties shall not be Members of the RSG and shall not have a right to participate in its decision-making process unless otherwise agreed in writing by PTC and the Trust.
5.3 Meetings of the RSG shall be convened by the Principal Investigator as required but at least [**] months (or less frequently with the consent of the Trust) for the duration of the Programme Term, on not less than [**] Business Days’ written notice (to be accompanied by an agenda for the meeting). Following the end of the Programme Term, the RSG shall meet within [**] Business Days to discuss and report on the outcomes of the Programme, and shall thereafter be dissolved.
5.4 Any or all Members may, with the prior consent of the RSG Chair, attend a meeting of the RSG by telephone or other electronic means rather than in person, provided that all Members attending the meeting can hear and be heard for all parts of the meeting. For the avoidance of doubt, RSG Members attending a meeting by telephone or other electronic means shall have the same voting rights as an RSG Member present in person.
5.5 A representative from any key outsourcing suppliers, collaborators or subcontractors involved in the Programme (if any) shall be invited to RSG meetings as an observer. The RSG shall also have power to invite persons whose special skills or influence might advance the Programme to attend and address meetings of the RSG. Such persons shall not be Members of the RSG and shall not have a right to participate in its decision-making process. The RSG Chair shall ensure that any such invitees sign confidentiality agreements in a form acceptable to all parties.
5.6 PTC shall upon request make available to the Trust and/or the RSG copies of all records generated in connection with the Programme, including for the avoidance of doubt, records generated by its Staff under Clause 4.3 and by any Third Party collaborators to the Programme appointed under Clause 7.
5.7 During the Programme Term, PTC shall procure that the Principal Investigator monitors the work carried out under the Programme for material that may be the subject of Programme Inventions and shall promptly notify the RSG of any such Programme Invention. Without prejudice thereto, during the Programme Term, PTC shall make reports on work being carried out under the Programme to the RSG [**], or from time to time as the RSG may reasonably request, such reports to include the progress of the Programme as well the matters described in Clause 11.9.
9. INTELLECTUAL PROPERTY MANAGEMENT GROUP
9.1 PTC and the Trust shall establish an Intellectual Property Management Group (“IPMG”), which shall:
(a) approve all public disclosures relating to the Programme, including presentations, posters and papers (provided that the contribution of the Trust is acknowledged in all such publications and quoting the Award number);
(b) identify new inventions arising out of the Programme and make recommendations for IP strategy, including patent filing and prosecution strategy and assessment of freedom to operate issues; and
(c) approve the Exploiting Party’s Development and Exploitation strategy in relation to the Programme Intellectual Property.
9.2 The IPMG shall be established and run by the Parties as set out below:
9.3 The IPMG shall be comprised of the following persons (“IPMG Members”):
(a) not more than [**] representatives of PTC;
(b) not more than [**] representatives of the Trust’s Technology Transfer Division or their nominees.
9.4 The Trust shall have the option to appoint [**] IPMG Members, to remove any IPMG Member appointed by it and to appoint any person to fill a vacancy arising from the removal or retirement of such IPMG Member. In the event that the Trust does not appoint such IPMG Members, the Trust shall have the right to receive all papers that an IPMG Member would be entitled to receive.
9.5 PTC shall have the option to appoint [**] IPMG Members, to remove any IPMG Member appointed by it and to appoint any person to fill a vacancy arising from the removal or retirement of such IPMG Member. If PTC does not appoint such IPMG Members, PTC shall have the right to receive all papers that an IPMG Member would be entitled to receive.
9.6 The IPMG Members shall select a chair (“IPMG Chair”) and the IPMG Chair shall be responsible for organising meetings of the IPMG, including preparing papers prior to meetings and ensuring minutes of meetings are produced. All papers and minutes shall be circulated to each IPMG Member in a timely manner.
9.7 The quorum for IPMG meetings shall be [**] IPMG Members, provided that at least [**]. Decisions of the IPMG shall be made by majority agreement with each Party entitled to case one (1) vote regardless of the number of IPMG Members present. If the IPMG is unable to reach agreement on a decision, the decision shall be escalated to Director of Technology Transfer at the Trust and the General Counsel of PTC for resolution. If the IPMG Chair is unable to attend an IPMG meeting, PTC and the Trust shall, in good time before the meeting, nominate an alternative IPMG member to act as Chair.
9.8 Meetings of the IPMG shall be convened by the IPMG Chair at least [**] per year and otherwise on an “as needed” basis, either in person at the premises of PTC or by ‘virtual private network’ videoconference if necessary. Any or all IPMG Members may, with the prior consent of the IPMG Chair, attend a meeting of the IPMG by telephone or other electronic means rather than in person, provided that all IPMG Members attending the meeting can hear and be heard for all parts of the meeting. For the avoidance of doubt, IPMG Members attending a meeting by telephone or other electronic means shall have the same voting rights as an IPMG Member present in person.
19. DISPUTE RESOLUTION
19.1 Any question, difference or dispute which may arise concerning the construction meaning or effect of this Agreement or concerning the rights and liabilities of the Parties hereunder or any other matter arising out of or in connection with this Agreement shall first be submitted to the Director of the Technology Transfer Division of the Trust and the General Counsel of PTC (or their designees) (the “Senior Officers”), who may call on others to advise them as they see fit.
19.2 If the Senior Officers are unable to resolve the dispute pursuant to Clause 19.1 within [**] Business Days of the date on which the matter is referred to them, such dispute may be referred by either Party for resolution by an independent chartered accountant (an “Expert”) to be appointed (in default of nomination by agreement between the Trust and PTC) by the President for the time being (or next available senior officer) of the Institute of Chartered Accountants in England and Wales. The following provisions shall govern the appointment of the Expert:
(a) The Expert shall prepare a written decision and give notice (including a copy) of the decision to the Parties within a maximum of [**] Business Days of the matter being referred to him.
(b) If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required by Clause 19.2 then:
(i) either Party may apply to the president of the Institute of Chartered Accountants in England and Wales to discharge the Expert and to appoint a replacement Expert with the required expertise; and
(ii) this Clause 19.2 shall apply in relation to the new Expert as if he were the first Expert appointed;
(c) The Parties shall be entitled to make submissions to the Expert including oral submissions and shall provide each Party with a copy of any such submissions and additionally shall provide (or procure that others provide) the Expert with such assistance and documents as the Expert reasonably requires for the purpose of reaching a decision.
(d) To the extent not provided for by this Clause 19, the Expert may, in his reasonable discretion, determine such other procedures to assist with the conduct of the determination as he considers just or appropriate.
(e) Each Party shall, with reasonable promptness, supply each other with all information and give each other access to all documentation and personnel as each other reasonably requires to make a submission under this Clause 19.
(f) The Expert shall act as an expert and not as an arbitrator. The Expert shall determine any dispute, which may include any issue involving the interpretation of any provision of this Agreement, his jurisdiction to determine the matters and issues referred to him or his terms of reference. The Expert’s written decision on the matters referred to him, if accepted by the Parties, shall be final and binding in the absence of manifest error or fraud; provided, however that either Party in its sole discretion may decline to accept the Expert’s written decision and instead refer the dispute to arbitration pursuant to Clause 19.3.
(g) Each Party shall bear its own costs in relation to the Expert. The Expert’s fees and any costs properly incurred by him in arriving at his determination (including any fees and costs of any advisers appointed by the Expert) shall be borne by the Parties equally or in such other proportions as the Expert directs.
19.3 If the procedure under Clauses 19.1 and 19.2 should fail to resolve the question, difference or dispute (including any question regarding the existence, validity or termination of this Agreement) the Parties agree to proceed to binding arbitration. Unless otherwise agreed by the Parties, the arbitration will be take place in London, England, according to the rules of the London Court of International Arbitration (“LCIA Rules”), which LCIA Rules are deemed to be incorporated by reference into this clause, except to the extent such rules are inconsistent with this Clause 19.3. The Parties shall bear their own costs of counsel and other professional advisers in such arbitration, regardless of outcome, and the Parties shall share equally in the cost of the arbitration. The arbitration will be conducted by one (1) arbitrator who shall be reasonably acceptable to the Parties and who shall be appointed in accordance with LCIA Rules. If the Parties are unable to select an arbitrator, then the arbitrator shall be appointed by the LCIA. Any arbitrator chosen hereunder shall have educational training and industry experience sufficient to demonstrate a reasonable level of scientific, financial, medical and industry knowledge relevant to the particular dispute. If the question, difference or dispute relates to existence, validity or termination of this Agreement, then the arbitrator shall resolve the question, difference or dispute, and the arbitration shall be conducted according to LCIA Rules. If the question, difference or dispute relates to any other matter under this Agreement, then the arbitration shall be conducted according to the following rules:
(a) Within [**] Business Days after the selection of the arbitrator, each Party shall submit to the arbitrator and the other Party a proposed resolution of the dispute that is the subject of the arbitration, together with any relevant evidence in support thereof (the “Proposals”). Within [**] Business Days after the delivery of the last Proposal to the arbitrator, each Party may submit a written rebuttal of the other Party’s Proposal and may also amend and re-submit its original Proposal. The Parties and the arbitrator shall meet within [**] Business Days after the Parties have submitted their Proposals, at which time each Party shall have [**] to argue in support of its Proposal. The Parties shall not have the right to call any witnesses in support of their arguments, nor compel any production of documents or take any discovery from the other Party in preparation for the meeting. Within [**] Business Days after such meeting, the arbitrator shall select one of the Proposals so submitted by one of the Parties as the resolution of the dispute, but may not alter the terms of either Proposal and may not resolve the dispute in a manner other than by selection of one of the submitted Proposals. If a Party fails to submit a Proposal within the initial [**] Business Day time frame set forth in the first sentence of this Clause 19.3(a), the arbitrator shall select the Proposal of the other Party as the resolution of the dispute. Any time period set forth in this Clause19.3(a) may be extended by mutual agreement of the Parties.
19.4 The results of an arbitration pursuant to Clause 19.3 shall be binding and enforceable against the Parties in any court of competent jurisdiction, and the Parties hereby consent to the jurisdiction of the English courts for such purpose.
19.5 Notwithstanding the foregoing provisions of Clause 19.3, either Party will have the right to seek interim or provisional relief in any court of competent jurisdiction as maybe available to such Party under the laws and rules applicable in such jurisdiction, including a temporary restraining order, preliminary injunction or other interim equitable relief, concerning a dispute either prior to or during arbitration under Clause 19.3, if necessary to protect the interests of such Party or to preserve the status quo pending final arbitration.
30. GOVERNING LAW
30.1 This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of this Agreement or its formation) shall be governed by and construed in accordance with the laws of England. The Parties irrevocably submit to the exclusive jurisdiction of the Courts of England provided that nothing in this clause shall prevent any Party from seeking injunctive relief in any court of competent jurisdiction in respect of a breach or threatened breach of Clause 17 (Confidentiality).