CONSORTIUM PARTICIPATION AGREEMENT (the "Agreement") effective as of ____________________________, by and between the Massachusetts Institute of Technology, having an office at MIT/CSAIL, 32 Vassar St, Room 32-G514, Cambridge, Massachusetts 02139 ("MIT"); the European Research Consortium for Informatics and Mathematics, having an office at 2004, Route des Lucioles, Sophia Antipolis, F-06410 Biot, France ("ERCIM"); Keio University having an office at 5322 Endo, Fujisawa, Kanagawa 252-8520, Japan ("KEIO") (collectively, "Hosts"); and _______________________________________, having an office at __________________________________________, (the "Sponsor").
WHEREAS, the Sponsor wishes to participate in the Mobile Web Initiative (the "Initiative"), the purposes of which are more fully set forth below and in the then-current version of Appendix 1 as approved by the Director (as defined below), which is hereby incorporated into this Agreement by reference, the current version of which exists at http://www.w3.org/Consortium/Agreement/Appendix.html.
WHEREAS, the Hosts have agreed to the Sponsor's participation as a Member in the Consortium, subject to said terms and conditions; and
WHEREAS, the Sponsor’s participation in the Consortium and cooperation with Hosts under this Agreement will further the instruction and research objectives of Hosts in a manner consistent with their status as non-profit, tax-exempt institutions.
NOW, THEREFORE, MIT, ERCIM, KEIO AND THE SPONSOR AGREE AS FOLLOWS:
The purposes of the Initiative are to support the advancement of Web Technology in the field of mobile communications by evolving the World Wide Web toward a true information infrastructure for mobile communication, and to encourage cooperation in the mobile industry through the promotion of standard interfaces in the information environment known as the "World Wide Web."
The Sponsor’s membership status is Full or Affiliate according to their W3C Membership Status.
All Sponsors joining the Initiative will be assigned for administrative purposes to a Host. Host assignment is also based on the Sponsor’s W3C Member Status. As stated in the W3C Agreement Sponsors, “with a primary domicile in Europe (including Africa and the Middle East) as defined by separate Agreements between the Hosts, shall be Sponsors of the ERCIM Center. Sponsors with a primary domicile in Japan or Korea shall be Sponsors of the KEIO Center. All other Sponsors shall be Sponsors of the M.I.T. Center.”
The Sponsor hereby agrees to participate in the Initiative and to pay a Sponsor Fee that equals to half the fee prescribed by the Participant's W3C Member Agreement. The total Fee is due at 45 days after the "Effective Date" and subsequently 45 Days after the date of renewal. Except as provided for in this Agreement, the Member Fee is non-refundable and shall be payable to the Host to which the Member is assigned by the Consortium.
The Initial Term of Membership ("Initial Term") shall begin the day this agreement is executed ("Effective Date") and shall continue in force for one year from the first day of the calendar quarter in which the Effective Date falls ("Anniversary Date"). Thereafter, this Agreement shall automatically renew for successive one-year terms ("Renewal Terms") beginning on the Anniversary Date unless Hosts notify Sponsor 90 days prior to expiration of the then-current Renewal Term of their intent not to renew this Agreement, or in the event Sponsor notifies Hosts of its intent not to renew the then-current term at least ninety (90) days prior to termination of the then-current Renewal Term. For all Renewal Terms, the Sponsor agrees to pay as Annual Fee of the MWI Sponsorship half of the then applicable Member Fee. The Annual Fee shall be due 45 Days after the Anniversary Date for the applicable Renewal Term.
MIT, ERCIM and KEIO shall have the following rights and obligations under this Agreement:
a. MIT, ERCIM and KEIO shall use diligent efforts to provide the vendor-neutral architectural and administrative leadership required to accomplish the Initiative's goals.
b. MIT, ERCIM and KEIO shall use the Sponsor Fees to further the purpose of the “Mobile Web Initiative” as outlined in Section 1.
c. MIT, ERCIM and KEIO shall establish and maintain a committee comprised of one representative of each sponsor organization called the Mobile Web Initiative Steering Committee ("Steering Committee").
d. Overall direction of the Initiative shall be the responsibility of the W3C Director described in the W3C Member Agreement.
e. MIT shall collect, maintain and distribute software and documentation created under the auspices of the Initiative, as set forth in Section 1.
f. MIT, ERCIM and KEIO shall establish and maintain Internet connection and computer resources to facilitate the work of, and permit the Sponsor with Internet access to communicate effectively with, the Initiative.
The Sponsor shall have the following rights and obligations under this Agreement:
a. The Sponsor shall appoint one representative to serve on the Steering Committee.
The Steering Committee can (in collaboration with the W3C team) draft and agree on W3C Activity Proposals and Group Charters (WG or IG) that should be supported by “Mobile Web Initiative” funds.
To ensure a high level of integration of the Mobile Web Initiative into the W3C as a whole, these proposals will be reviewed by the general W3C membership according to the W3C process, and participation in any resulting W3C Working and Interest Groups will be open to all W3C members.
The Steering Committee will also review annual plans, assess Initiative progress, and suggest future directions for the Initiative.
b. The Sponsor may volunteer staff members on short assignment to one or more Hosts, who will serve the Consortium as Visitors subject to the approval of the Director if to MIT, or the appropriate Deputy Director if to ERCIM or KEIO. Visitors shall be under the direction of the Consortium Director if at MIT and the Consortium Deputy Director if at ERCIM or KEIO. Hosts shall bear no legal responsibility for the activities of Visitors. In the event of a dispute or other problem arising in the working relationships between and among Visitors, the Director or Deputy Director, as applicable, shall use all reasonable efforts to resolve such problems.
c. If the Sponsor has subsidiaries, the rights and privileges granted under this Agreement shall extend to all subsidiaries the voting stock of which is directly or indirectly at least fifty percent (50%) owned or controlled by the Sponsor.
d. If the Sponsor is itself a consortium, user society, or otherwise has members or sponsors, the rights and privileges granted under this Agreement extend only to the paid employees of the Sponsor, not to its members or sponsors.
The Sponsor will not use the name of MIT, ERCIM or KEIO and Hosts will not use the name of the Sponsor in any form of publicity without written permission, which in the case of MIT shall be obtainable from the Director of the News Office; in the case of ERCIM from the Director of Promotion; in the case of KEIO from the Administrative Director of The Keio Research Institute at SFC; and in the case of the Sponsor from __________________________.
All Intellectual Property Rights with respect to work in the Initiative are in accordance with the normal W3C Process, and therefore Paragraph 7, Intellectual Property Rights, of the Sponsor's W3C Member Agreement is incorporated by reference and applies to all Intellectual Property Rights matters.
All notices or other communications to or upon either party shall be in writing delivered by first class, air mail or facsimile, dispatched to or given at the following addresses:
For MIT:
Benjamin Snedeker
Massachusetts Institute of Technology
Office of Sponsored Programs
Building E19-750
77 Massachusetts Avenue
Cambridge, MA 02139
UNITED STATES
For ERCIM:
Jérôme Chailloux
GEIE ERCIM Manager
2004, Route des Lucioles
Sophia Antipolis
F-06410 Biot
FRANCE
For KEIO:
Yoshihide Konno, Administrative Director
Keio Research Institute at SFC
Keio University/SFC
5322 Endo
Fujisawa, Kanagawa 252-8520
JAPAN
For the Sponsor:
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
In the event notices and statements required under this Agreement are sent by certified or registered mail by one party to the party entitled thereto at its above address, they shall be deemed to have been given or made as of the date received.
The relationship of the parties under this Agreement shall be that of a voluntary association. The Initiative is not a separate legal entity, and this Agreement does not create a partnership or joint venture. Neither MIT, ERCIM, KEIO nor the Sponsor can bind the other or create any relationship of principal or agent.
MIT, ERCIM and KEIO shall have the right, upon sixty (60) days prior written notice, to dissolve the Initiative, by terminating all Initiative Sponsor Agreements.
MIT, ERCIM AND KEIO MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SOFTWARE OR DOCUMENTATION PROVIDED OR MADE AVAILABLE TO THE MEMBER, OR WITH RESPECT TO ANY STANDARD ENDORSED BY MIT, ERCIM OR KEIO OR THE INITIATIVE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT SOFTWARE AND DOCUMENTATION DOES NOT INFRINGE THE PROPRIETARY RIGHTS OF THIRD PARTIES, INCLUDING PATENTS, COPYRIGHTS AND TRADE SECRETS. THE SPONSOR AGREES THAT ALL SOFTWARE AND DOCUMENTATION SHALL BE ACCEPTED BY SPONSOR "AS IS".
In the event of dissolution of the Initiative and termination of this Agreement by MIT, ERCIM and KEIO pursuant to Section 10 hereof, the Sponsor shall be entitled to receive, as its sole and exclusive remedy, a refund of any portion of the Sponsor's duly paid and as-yet uncommitted Sponsor Fee, and upon such refund, any further liability of MIT, ERCIM and/or KEIO to the Sponsor shall be extinguished. This remedy is in lieu of all other remedies, whether oral or written, express or implied. MIT's liability to the Sponsor in the event of any other claim by Sponsor shall be limited to the amount of the Sponsor's duly paid Sponsor Fee. In no event shall MIT, ERCIM and/or KEIO be liable for any indirect, incidental, consequential, or special damages, including lost profits, sustained or incurred by the Sponsor in connection with or as a result of its participation in the Initiative or under this Agreement.
If the performance of any obligation by MIT, ERCIM and KEIO under this Agreement is prevented, restricted or interfered with by reason of natural disaster, war, revolution, civil commotion, acts of public enemies, blockade, embargo, strikes, any law, order, proclamation, regulation, ordinance, demand or requirement having a legal effect of any government or any judicial authority or representative of any such government, or any other act or event which is beyond the reasonable control of the party affected, then MIT, ERCIM and KEIO shall be excused from such performance to the extent of such prevention, restriction, or interference, provided that MIT, ERCIM and KEIO shall use reasonable commercial efforts to avoid or remove such causes of nonperformance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.
The Sponsor acknowledges that export and/or re-export from the United States, France, or Japan of technical data, computer software, laboratory prototypes and other commodities ("Controlled Commodities") may be subject to the export control laws and regulation of the United States (including the Arms Export Control Act, as amended, and the Export Administration Act of 1979 revised in 1985), of France, and of Japan, and that such laws and regulations could preclude or delay export of such Controlled Commodities. MIT 's, ERCIM's and KEIO's obligation hereunder are contingent on compliance with such applicable laws and regulations. Neither party will directly or indirectly export across any national boundary, or communicate or transfer to any third party, any Controlled Commodities without first obtaining any and all licenses that may be required from a cognizant agency of the United States government or the French or Japanese authorities, and/or any and all written assurances from the Sponsor that it will not re-export or transfer such Controlled Commodities to certain foreign countries or third parties without prior approval of the cognizant government agency. While MIT, ERCIM and KEIO agree to cooperate in securing any license which the cognizant agency deems necessary in connection with the export, re-export, transfer or communication of any Controlled Commodities, MIT, ERCIM and KEIO cannot guarantee that such licenses will be granted.
Neither this Agreement nor any rights hereunder, in whole or in part, are assignable by the Sponsor without the prior written consent of the Hosts. Any attempt to assign the rights, duties or obligations under this Agreement by the Sponsor without such consent shall be a breach of this Agreement and shall be null and void.
This Agreement, together with the W3C Member Agreement and Appendix 1, embodies the entire understanding between MIT, ERCIM, KEIO and the Sponsor for the Sponsor's participation in the Initiative, and cancels and supersedes any other agreements, oral or written, entered into by the parties hereto as to its subject matter.
This Agreement may be amended only by a writing signed by MIT, ERCIM, KEIO and the Sponsor.
This Agreement shall be deemed to have been entered into and shall be interpreted and governed in all respects by the laws of The Commonwealth of Massachusetts and the United States of America.
Any controversy or claim arising out of or relating to this Agreement, its execution or breach, and any damages allegedly suffered there from, first shall be submitted to friendly negotiation between the parties. Matters which cannot be resolved through negotiation shall be finally settled: (i) if the Sponsor is organized or incorporated within any of the United States, under the Commercial Rules of Arbitration of the American Arbitration Association, by one (1) arbitrator appointed in accordance with said Rules, or (ii) if the Sponsor is organized or incorporated outside the United States, under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, by one (1) arbitrator appointed in accordance with said Rules. In any event, the place of arbitration shall be Cambridge, Massachusetts. The arbitrator shall determine the matters in dispute in accordance with the laws of the Commonwealth of Massachusetts pursuant to Section 18 of this Agreement. The English language shall be used throughout the proceedings. Any award, order or judgment pursuant to such arbitration may be entered and enforced in any court of competent jurisdiction. The Sponsor agrees to submit to the jurisdiction of any such court for purposes of the enforcement of any such award, order or judgment.
The obligations of MIT, ERCIM and KEIO and the Sponsor under Sections 6, 7, 9, 11-14, 18, and 19 of this Agreement shall survive expiration or termination hereof, and shall continue hereafter in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their duly authorized representatives, effective as of the day and year first above written.
| Massachusetts Institute of Technology
By:___________________________ Title: Associate Director, Office of Sponsored Programs Date:_________________________ |
European Research Consortium for Informatics and
Mathematics
By:____________________________ Title: GEIE ERCIM Manager Date:__________________________ |
| Keio University
By:____________________________ Title: Executive Director of Keio Research Institute at SFC Date:__________________________ |
Sponsor
By:____________________________ Title:___________________________ Address:________________________ ________________________ Telephone:_______________________ Email:__________________________ Signature:________________________ Date:____________________________ |