Entering into agreements

The following should be considered when signing an agreement

Örebro University is a state authority. The counterparty to the agreement must be either a natural person or legal entity. If the other party is another state authority, there is no agreement in the legal sense, the state is in its entirety a legal entity, but a written agreement is signed. All agreements and arrangements to which Örebro University is a party must be regulated in writing.

The vice-chancellor is the university’s signatory and the person who signs agreements in the university’s name. As stated in the university's delegation of authority policy, the vice-chancellor can delegate the right to sign agreements. An employee who does not have the right to conclude an agreement cannot enter an agreement on behalf of the university with binding force. An agreement signed by an employee who does not have the right to conclude an agreement can be approved afterwards by a superordinate. The result is that the university becomes bound by the agreement.

Preparations

It is good to appoint a person responsible for the handling things until the agreement is signed. It is also good to have a schedule that leaves room for adjustments as the agreement is negotiated. As a rule, this is done by an administrator experienced in writing agreements.

Contact the involved people, both the person who will ultimately sign the agreement and those involved in the agreement's preparation. That way, everyone is prepared and can set aside time. It may be a question of making a procurement.

Implementation

Checklist for contract writing

General

• The agreement must clearly state the contracting parties and signatories. Enter the parties’ organisation number and address (Örebro University has organisation number 202100-2924). In particular, ensure that a qualified signatory signs the agreement. Clearly state the school/division at Örebro University involved and the contact person for each party.
• If the other party has drawn up the draft agreement, it should be checked that all terms and annexes referenced in the agreement are included.
• The agreement should contain, among other things, a short background description, the purpose, and objectives of the agreement.
• The parties’ relationship with each other and the respective commitments and division of responsibilities must be clear and easily understood.
• How funding is regulated must be clearly stated. In particular, check if the budget is verified, that there is a payment routine specified and if any financial risk exists. Agreed amounts are declared excluding VAT.
• The period of validity of the agreement must be clearly stated, such as when the agreement enters into force and when and how it is terminated, as well as the notice period and how the parties handle a breach of contract and premature termination. Automatic renewal of agreements usually is not recommended. Before the agreement is extended, the collaboration/project should be evaluated.
• Terms of any confidentiality clause must be acceptable. The university is a state authority and must follow the rules on public access to public documents. Therefore, any secrecy must have legal support in the Public Access to Information and Secrecy Act (2009:400). Under no circumstances can the university be imposed an obligation to keep secret any information that the university must disclose by law. The university is also obliged to archive its public documents, which means that these cannot be sent back or destroyed if the other party wishes to agree.
• The agreement must contain acceptable conditions for damages, whereby a ceiling for the parties’ liability for damages should be stated. The university shall not accept financial responsibility for indirect damage. The university should not accept conditional fines.
• The agreement should include a force majeure clause, which means an unforeseen, extraordinary event such as war, natural disaster, pandemic, import ban and the like, making it impossible to fulfil concluded agreements.
• Any changes to the agreement must be in writing and approved by all parties to the agreement.
• Resolution of any dispute must be clearly defined. In agreements with Swedish parties, this means the Swedish court or arbitration. The differences between these two are many; determining which proceeding is most appropriate depends on the circumstances. Court proceedings are public and provide an opportunity to appeal the judgment. Thus any dispute is resolved in two instances. However, this means that the process can be protracted. Arbitration proceedings are resolved in only one instance. The parties themselves determine the composition of the arbitration panel, decide which country’s law is to be applied and where the proceedings are to take place. Although arbitration proceedings are not public, an arbitration award can also be enforced abroad, to a greater extent than that which applies to court judgments. The disadvantage of arbitration proceedings is that they may be significantly more costly than court proceedings, as the parties are responsible for all costs incurred. If the other party is another authority, any dispute must be resolved through negotiation, preferably at the management level and ultimately by the government since all state authorities constitute the same legal entity. In the case of international agreements, Swedish law shall, as a general rule, be applied in the resolution of any dispute or, as an alternative, the law of a neutral country so that conditions are fair.

The following applies primarily to research agreements/research assignments:

• The agreement area’s organisation should be specified, such as the project manager, forms of governance, reporting and evaluation, etc.
• Funding for any assignments must be clearly stated, including all direct and indirect costs.
• Ownership and the right to use results must be regulated. As a general rule, Örebro University does not own the results of research conducted at the university; these results belong to the university’s employed researchers (as per the intellectual property rights of academic staff). Ownership and right to use can, however, be transferred by agreement. In assignment agreements, results, as a rule, belong to the principal, but this must always be endorsed by the university’s researchers in a written agreement. It is also important that the university/its researchers are guaranteed the right to use results in further research and education. In the case of grant agreements, research results, as a rule, belong to the researchers themselves.
• A publication clause must be acceptable. Before results may be published, a maximum of 90 days should be stated, for the other party to review research results or exercise an option for a patent application. Örebro University should always be mentioned as a party in connection with the publication of results.
• If funds are granted – use this agreement/decision as an annexe and refer to this.

Advice

As a researcher, assume that companies involved in projects do so to profit and derive benefit from your project. You should address intellectual property rights (IPR) and the topics listed above in your discussions as early as possible. It is particularly difficult to discuss such issues after funding has been granted. If you are seeking agreement templates as a basis for such talks, contact our legal officers (preferably email: juridik@oru.se)

Review

The legal officers at the Office for Academic Policy are the only experts at the university charged with reviewing and advising on agreement issues. Researcher questions or other inquiries focused primarily on funding or matters related to the research, consult the Finance Office or Grants Office.

A review of an agreement involves studying and analysing the contents of the agreement, focused on the legal aspects. Legal officers do not have expertise in the research that is to be conducted. The assessment may suggest taking measures necessary before signing the agreement, for example, changing or deleting certain conditions, which may lead to a negotiation situation with the other party.

Closing measures

When the agreement is ready for signing, it must be registered in Public360. Once signed, all persons concerned are to be notified. An original is always sent to the registrar for archiving. All parties must sign the agreement before beginning any work covered by the agreement. All parties to the agreement must keep a signed original.