CONSORTIUM PARTICIPATION AGREEMENT (the "Agreement") dated as of the day of ____________________________, by and between the Massachusetts Institute of Technology, having an office at 545 Technology square, Cambridge, Massachusetts 02139 ("MIT") and the Institut National de Recherche en Informatique et en Automatique, having an office at Domaine de Voluceau, Rocquencourt 78153 Le Chesnay Cedex, France ("INRIA"), and Keio University having an office at 5322 Endo, Fujisawa, 252 Japan ("KEIO") and _______________________________________, having an office at __________________________________________, (the "Member").
WHEREAS, the Member wishes to participate in the International World Wide Web Consortium (the "Consortium" or "W3 Consortium") hosted by MIT, INRIA and KEIO, the purposes of which are more fully set forth below and in Appendix 1, which is attached hereto and expressly made a part hereof ("Description of International W3 Consortium" dated October 1994) on the terms and conditions hereinafter provided;
WHEREAS, MIT, INRIA and KEIO have agreed to the Member's participation as a Full Member in the Consortium, subject to said terms and conditions; and
WHEREAS, the Member's participation in the Consortium and cooperation with MIT, INRIA and KEIO under this Agreement will further the instruction and research objectives of MIT, INRIA and KEIO in a manner consistent with their status as non-profit, tax-exempt institutions.
NOW, THEREFORE, MIT, INRIA and 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."
The Member hereby agrees to participate in the Consortium as a Full Member, as described in Appendix 1, and agrees to pay a membership fee (the "Membership Fee") of Fifty Thousand ($50,000) Dollars per year for a period of three years.
Payment will be made in U.S. Dollars to MIT per the schedule in Appendix 1.
Except as provided for in this Agreement, the Membership Fee is non-refundable.
The period of the Member's participation in the Consortium shall begin the day this agreement is executed and shall continue in force for three years from the first day of the calendar quarter in which the member joined; i.e. January 1st, April 1st, July 1st, October 1st. This term will automatically be renewed on a yearly basis beyond the current expiration date _______________, unless one year's notification is given by MIT, INRIA and KEIO or three months' notification is given by the member. The fee for each renewal will be the fee in force three months prior to the renewal date.
MIT, INRIA 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, INRIA and KEIO shall use diligent efforts to provide the vendor-neutral architectural and administrative leadership required to accomplish the Consortium's goals.
b. MIT, INRIA and KEIOshall use the Membership Fees as outlined in Appendix 1.
c. MIT, INRIA 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. MIT shall appoint and maintain an MIT-employed Consortium director (the "Director"), who will act as chief architect for all specifications produced by the Consortium. The Director shall have final authority on all decisions regarding the Consortium's proposals for new standards pursuant to its Standards Review Process, as set forth in Appendix 1. INRIA and KEIO shall each appoint a Deputy Director who report to the Director and manage the development effort at INRIA 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, INRIA 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, INRIA 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.
d. Subject to the restrictions contained in this Agreement, the Member may incorporate Consortium software and documentation into products at any time after the materials have been released to the members of the Consortium. 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 MIT and/or INRIA and/or KEIO, who will serve the Consortium as Visiting Engineers subject to the approval of the Director and Deputy Director if the scientist is to visit INRIA and/or KEIO.
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, INRIA or KEIO and MIT, INRIA or KEIO will not use the name of the Member in any form of publicity without permission which in the case of MIT shall be obtainable from the Director of the News Office, in the case of INRIA 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, INRIA and KEIO and the Member shall be free to use and publish any research results, ideas, algorithms, techniques and other information developed under the auspices of 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 the Director, MIT staff or industrially-employed visitors when working at MIT for the Consortium shall vest in 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 the Deputy Director, INRIA staff or industrially-employed visitors when working at INRIA for the Consortium shall vest in INRIA. To the extent necessary, Member agrees to execute such assignment documents as may be required to vest title in INRIA, 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 the Deputy Director, KEIO staff or industrially-employed visitors when working at KEIO for the Consortium 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, INRIA and KEIOand Member pursuing 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 understands that MIT, INRIA and KEIO will make all such jointly owned inventions and copyrights available to the general public for unrestricted use.
MIT, INRIA 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, INRIA orKEIO and which must be reproduced on each copy reproduced or distributed by the Member.
It is the intention of MIT, INRIA and KEIO to grant to members of the general public as well as to Member license rights as described above, including rights to use MIT, INRIA and KEIO trademarks, if any, relating to W3 products and services provided they conform to W3 specifications established by MIT, INRIA and KEIO.
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:
Diane J. Patrick Sr. Contract Administrator Office of Sponsored Programs, E19-750 Massachusetts Institute of Technology 77 Massachusetts Avenue Cambridge, MA 02139 UNITED STATES
Hervé Mathieu, Vice-President, Deputy Executive Officer INRIA, BP105 Domaine de Voluceau, Rocquencourt 78153 Le Chesnay Cedex FRANCE
Satoru Harada, Administrative Director Keio Research Institute at SFC Keio University/SFC 5322 Endo Fujisawa 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 so mailed.
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, nor INRIA, nor KEIO nor the Member can bind the other or create any relationship of principal or agent.
MIT, INRIA and KEIO shall have the right, upon sixty (60) days prior written notice, to dissolve the Consortium, by terminating the agreements (including this Agreement) with each member of the Consortium in the event of force majeure, as described in Section 13 below, occurs which MIT, INRIA and KEIO determine in good faith will prevent MIT, INRIA and KEIO from carrying out its administrative and leadership duties under this Agreement.
MIT, INRIA 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, INRIA 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, INRIA and KEIO pursuant to Section 10 hereof, the Member shall be entitled to receive, as its sole and exclusive remedy, a refund of all of the Member's duly paid and uncommitted Membership Fee, and upon such refund, any further liability of MIT, INRIA 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 Membership Fee. In no event shall MIT, INRIA 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, INRIA 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, INRIA and KEIO shall be excused from such performance to the extent of such prevention, restriction, or interference, provided that MIT, INRIA 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 (the "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, INRIA'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, INRIA 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, INRIA 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 either party without the prior written consent of the other party. Any attempt to assign the rights, duties or obligations under this Agreement without such consent shall be a breach of this Agreement and be null and void.
This Agreement, together with Appendix 1, embodies the entire understanding between MIT, INRIA and 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, INRIA and 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 and by the international treaties signed by the French and Japanese authorities and the Member's country.
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, INRIA 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
Institut National de Recherche en