CONSORTIUM PARTICIPATION AGREEMENT (the "Agreement") effective as of ____________________________, by and between the Massachusetts Institute of Technology, having an office at 32 Vassar Street, 32-G519, Cambridge, Massachusetts 02139 ("MIT"); the European Research Consortium for Informatics and Mathematics, having an office at 2004, Route des Lucioles, BP 93, F-06902 Sophia Antipolis, France ("ERCIM"); Keio University having an office at 5322 Endo, Fujisawa, Kanagawa 252-8520, Japan ("KEIO") (collectively, "Hosts"); and _______________________________________, having an office at __________________________________________ (the "Member").
WHEREAS, the Member wishes to participate in the International World Wide Web Consortium (the "Consortium"), 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 Member's participation as a Member in the Consortium, subject to said terms and conditions; and
WHEREAS, the Member'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 MEMBER AGREE AS FOLLOWS:
The purposes of the Consortium are to support the advancement of information technology in the field of networking, graphics and user interfaces by evolving the World Wide Web toward a true information infrastructure, and to encourage cooperation in the industry through the promotion and development of standard interfaces in the information environment known as the "World Wide Web."
Fees for W3C Membership are found on the schedule at http://www.w3.org/Consortium/fees. The fee applicable to the Member is dependent on circumstances particular to the Member. Member warrants that it qualifies for the fee shown below.
All Members joining the Consortium will be assigned for administrative purposes to a Consortium Host. Members with a primary domicile in Europe, Africa and the Middle East, as defined by separate Agreements between the Hosts, shall be Members of the ERCIM Host. Members with a primary domicile in Japan or Korea shall be Members of the KEIO Host. All other Members shall be Members of the M.I.T. Host.
The Member hereby agrees to participate in the Consortium and to pay the applicable Initial Term Member Fee . One-third of the Initial Term Member Fee is due at the time the organization executes this Agreement, and one-third shall be due in each of the two subsequent Anniversary Dates as defined below. 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, in the currency stated.
The Initial Term of Membership ("Initial Term") shall begin the day this agreement is executed ("Effective Date") and shall continue in force for three years 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 Member one (1) year prior to expiration of the then-current Renewal Term of their intent not to renew this Agreement, or in the event Member 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 Member agrees to pay an Annual Fee equal to one-third of the then-current applicable Initial Member Fee. The Annual Fee shall be due on or before the Anniversary Date for the applicable Renewal Term.
MIT, ERCIM and KEIO shall have the following rights and obligations under this Agreement, which rights and obligations are more fully described in Appendix 1:
a. MIT, ERCIM and KEIO shall use diligent efforts to provide the vendor-neutral architectural and administrative leadership required to accomplish the Consortium's goals.
b. MIT, ERCIM and KEIO shall use the Member Fees as outlined in Appendix 1.
c. MIT, ERCIM and KEIO shall establish and maintain a committee comprised of one representative of each member organization (the "Advisory Committee"), which shall operate as set forth in Appendix 1.
d. Overall direction of the Consortium shall be the responsibility of an MIT-appointed Consortium Director ("Director"), who will act as chief architect for all specifications produced by the Consortium and who shall have the ultimate authority for all Consortium activities, as further set forth in Appendix 1. ERCIM and KEIO shall each appoint a Deputy Director who report to the Director and manage the development effort at ERCIM and KEIO, respectively.
e. MIT shall collect, maintain and distribute software and documentation created under the auspices of the Consortium, as set forth in Appendix 1.
f. MIT, ERCIM and KEIO shall establish and maintain Internet connection and computer resources to facilitate the work of, and permit the Member with Internet access to communicate effectively with, the Consortium.
The Member shall have the following rights and obligations under this Agreement, which rights and obligations are more fully described in Appendix 1:
a. The Member shall appoint one representative to serve on the Advisory Committee and to participate in the Standards Review Process.
b. The Member shall have the right to establish and maintain computer network links via the Internet with MIT, ERCIM and KEIO sufficient to participate in Consortium activities.
c. The Member shall have access to software and documentation produced by the Consortium prior to release of such software and documentation to non-members, as set forth in Appendix 1.
d. Subject to the restrictions contained in this Agreement, the Member may incorporate Consortium software and documentation into products at any time after release of the software and documentation to members of the Consortium has been approved by the Director. The Member shall not adopt or incorporate such software and documentation into products prior to such release.
e. The Member 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.
f. If the Member 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 Member.
g. If the Member 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 Member, not to its members or sponsors.
The Member will not use the name of MIT, ERCIM or KEIO and Hosts will not use the name of the Member 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 Member from __________________________ .
MIT, ERCIM, KEIO and the Member shall be free to use and publish any research results, ideas, algorithms, techniques and other information developed in connection with the Consortium during the term of this Agreement, except that intellectual property described in (b) and (c) below shall be subject to the licenses specified therein.
The Member agrees that all right, title and interest in and to any and all software and documentation created or developed, and in and to all patentable inventions conceived or first reduced to practice by solely by the MIT, its employees, consultants or students, or by Visitors at MIT, shall be owned by MIT. To the extent necessary, Member agrees to execute such assignment documents as may be required to vest title in MIT, at no expense to the Member.
The Member agrees that all right, title and interest in and to any and all software and documentation created or developed, and in and to all patentable inventions conceived or first reduced to practice, by ERCIM, its employees, consultants or students, or Visitors at ERCIM, shall vest in ERCIM. To the extent necessary, Member agrees to execute such assignment documents as may be required to vest title in ERCIM, at no expense to the Member.
The Member agrees that all right, title and interest in and to any and all software and documentation created or developed, and in and to all patentable inventions conceived or first reduced to practice, by KEIO, its employees, consultants or students, or Visitors at KEIO, shall vest in KEIO. To the extent necessary, Member agrees to execute such assignment documents as may be required to vest title in KEIO, at no expense to the Member.
Except as provided above, patentable inventions and copyrighted materials developed jointly by MIT, ERCIM, KEIO and Member during the course of Consortium activities shall be jointly owned. Each joint owner shall be entitled to exercise all rights of ownership as provided by law, without, however, an obligation of accounting from one to the other. Member acknowledges that all such jointly owned inventions, software or other copyrightable materials, or materials owned by Member made available by Member for Consortium activities, will be made available to the general public pursuant to the then-current W3C Software Notice and License (which exists at http://www.w3.org/Consortium/Legal/copyright-software). Specific exceptions may be made upon approval of the Director, with the advice of the Advisory Committee.
MIT, ERCIM and KEIO agree to grant and hereby grant to Member a non-exclusive royalty-free, irrevocable, right and license to use, reproduce, modify, translate, distribute, publicly display and publicly perform all computer software and documentation described in Section 7 (b) throughout the world, subject to the notices with respect to copyright, trademarks, and disclaimer of liability which shall appear on all copies of the software and documentation provided to the Member by MIT, ERCIM or KEIO and which must be reproduced on each copy reproduced or distributed by the Member.
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:
Stephen L. Michaels, Associate Director
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:
Yuichi Toyama, Administrative Director
Keio Research Institute at SFC
Keio University/SFC
5322 Endo
Fujisawa, Kanagawa 252-8520
JAPAN
For the Member:
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
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 Consortium is not a separate legal entity, and this Agreement does not create a partnership or joint venture. Neither MIT, ERCIM, KEIO nor the Member 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 Consortium, by terminating all Consortium Member 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 CONSORTIUM, 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 MEMBER AGREES THAT ALL SOFTWARE AND DOCUMENTATION SHALL BE ACCEPTED BY MEMBER "AS IS".
In the event of dissolution of the Consortium and termination of this Agreement by MIT, ERCIM and KEIO pursuant to Section 10 hereof, the Member shall be entitled to receive, as its sole and exclusive remedy, a refund of any portion of the Member's duly paid and as-yet uncommitted Member Fee, and upon such refund, any further liability of MIT, ERCIM and/or KEIO to the Member shall be extinguished. This remedy is in lieu of all other remedies, whether oral or written, express or implied. MIT's liability to the Member in the event of any other claim by Member shall be limited to the amount of the Member's duly paid Member 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 Member in connection with or as a result of its participation in the Consortium 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 Member 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 Member 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 Member without the prior written consent of the Hosts. Any attempt to assign the rights, duties or obligations under this Agreement by the Member without such consent shall be a breach of this Agreement and shall be null and void.
This Agreement, together with Appendix 1, embodies the entire understanding between MIT, ERCIM, KEIO and the Member for the Member's participation in the Consortium, 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 Member.
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 Member 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 Member 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 Member 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 Member 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
Title: Associate Director, Office of Sponsored Programs
|
European Research Consortium for Informatics and Mathematics
|
| Keio University
|
Member
Title:___________________________
|
Mauro Nunez