Guidelines for signing contractual documents and memoranda of understanding

Introduction

This document supports the policy objectives outlined in the University's policy on management of contracts and MOUs (MOPP G/6.1) and must be read in conjunction with it.

The following guidelines and checklist have been developed to assist delegates and other officers to understand the types of formal documents which are signed in the University and to list the relevant considerations to be taken into account when developing or negotiating these documents including appropriate signatories. 

Formal Documents

Contractual Documents

The definitions of contracts, deeds and memoranda of understanding are found in MOPP G/6.1.2.

There are two types of contractual documents: contracts (also referred to as agreements) and deeds. Contractual documents are legally binding on the parties to them.

The essential difference between contracts and deeds is the degree of formality required for their creation. The QUT Seal must be affixed to a deed, which must always be signed by the Registrar and Vice-Chancellor. For further details, see MOPP A/1.4.

Typical examples of the type of situations in which the University may enter into a deed are:

• the transfer of a parcel of land between Queensland Government and QUT;
• a deed of confidentiality between a government department and QUT whereby QUT agrees to ensure that the State's confidential information is kept confidential.

Most contractual documents entered into by the University will be contracts. Typical examples of the type of situations in which the University may enter into a contract are:

• An agreement between a student and QUT that the student will assign to QUT all intellectual property created by the student during their participation in a project;
• A funding agreement with the ARC to undertake a research project, under which QUT and the industry partner are required to enter into an agreement for the conduct of the project;
• Documents setting out business relationships with legal intent including standing offers and preferred supplier arrangements for the procurement of goods and services;
• Documents setting out the terms and conditions of a consultancy service.

Memoranda of Understanding

Sometimes QUT will enter into memoranda of understanding (MOU). Generally, a memorandum of understanding is intended to formalise the terms of a relationship, arrangement or understanding between the parties but is not intended to be legally binding on them. However, sometimes, a document described as a memorandum of understanding may in fact be legally binding. To avoid any dispute about whether a memorandum of understanding is legally binding, every memorandum of understanding should contain a specific statement to the effect that it is not intended to create legally binding obligations (see MOPP G/6.1.3(b)). Without such a statement, there is a risk that an MOU may be construed as legally binding on the parties to it.

If an arrangement is intended to be legally binding, the parties must execute a contract or deed (rather than a document described as a memorandum of understanding).

Typical examples of the type of situations in which the University may enter into a memorandum of understanding that is not intended to be legally binding are:

• To record an understanding between another university's training arm and QUT International College to identify programs and target markets for delivery of programs to students
• To promote cooperation and further develop a friendly relationship between two institutions and to encourage interaction between respective staff, including inter-institutional visits, academic publication and educational collaboration.

Information included in the documents

As a general rule, all of the above documents (contracts, deeds and MOUs) would include:

• Details of the parties to the document
• Objectives, purposes and anticipated benefits
• Agreed actions
• Operational and implementation arrangements

Provisions in relation to the parties' specific obligations should be included in contracts and deeds. Where appropriate, these clauses may relate to (amongst other matters):

• Payment arrangements
• Intellectual property arrangements
• Financial and/or resourcing arrangements
• Conflict resolution mechanisms
• Termination
• Risk management (such as exclusions or limitation of liability, insurance requirements and indemnities)

Each MOU should include a statement of understanding ie an express statement to the effect that the memorandum of understanding is not intended to create legally binding obligations on the parties (see MOPP G/6.1.3(b)). Generally speaking, an MOU would not include information about expiry or termination dates, though it should specify a date of review.

Guidelines for signing documents

Before entering into any of the above documents, the following needs to be considered:

1. Purpose of the document
2. Does the document link to the Blueprint/top level plans/divisional/faculty plans where appropriate
3. What are the benefits of the document to QUT, ie what will be delivered to the faculty/school
4. Does the document have the Dean's/Head of Division's support
5. Does the document comply with all of the legal formalities which may be required
6. What are the commitments/liabilities/resources
7. What are the main risks associated with the document and can they be insured
8. Is legal opinion required
9. Who has the delegated authority to sign the document
10. What level is the signatory of the other party signing the document
11. What would be the consequences of not signing the document
12. How will QUT's reputation be enhanced by the association established under the document
13. How will the relationship be enhanced in the community
14. What other potential partners will be precluded by virtue of this association (ie is the partner the best QUT can do in the nominated area)
15. How does the relationship enhance and sustain other QUT relationships with this partner

Risk assessment

1. Is the document necessary in order for QUT to receive the benefits
2. What commitments will this document require of QUT and over what time period
3. What due diligence checks have been carried out on the other party or parties to the document
4. What would the consequences of not signing the document be for QUT
5. Is there adequate insurance cover - if not, or not clear, refer to Executive Director, Finance and Resources Planning for advice
6. Are there commercial implications of the document - refer to Manager, Office of Commercial Services for advice
7. Undertake a risk assessment (refer to QUT Risk Management framework)
8. Is the initiative high/extreme risk and related to research - refer to Deputy Vice-Chancellor (Research and Commercialisation) for advice
9. Is the initiative high/extreme risk and related to international - refer to Deputy Vice-Chancellor (International and Development) for advice
10. Is the initiative high/extreme risk and related to international research - refer to both Deputy Vice-Chancellor (Research and Commercialisation) and the Deputy Vice-Chancellor (International and Development) for advice
11. Is the document between the University and international partner institutions - refer to Deputy Vice-Chancellor (International and Development) for advice/signature
12. Does the document require the granting of an indemnity or guarantee and the initiative is considered high/extreme risk - refer to MOPP A/7.1 - Indemnity and insurance
13. Are there any legal issues which require clarification - refer to Registrar's Office for advice
14. Are there any financial implications which require consideration - refer to Executive Director, Finance and Resources Planning for advice
15. Are there any intellectual property implications - if so, refer to Manager, Office of Commercial Services for advice
16. Are there any space implications - if so refer to Director, Facilities Management for advice
17. Are there any human resources implications - if so refer to Human Resources Director for advice
18. Are there any marketing implications
    - if domestic refer to Director, Marketing and Communications Department
    - if international, refer to Director, International Relations

Records management

A copy of all documents signed by the Vice-Chancellor or Registrar must be forwarded to Archives and Records Management Services (Secretariat) for registration and filing.

Full details of records management requirements for all formal documents can be found in MOPP G/6.1.6 (Policy on management of contracts and MOUs).

Faculties and divisions may maintain a database of contracts, deeds and MOUs comprising:

• Reference number
• Names of the parties involved
• Contract or MOU manager name, position and contact details
• Description of the goods and / or services provided, or in the case of MOUs, a description of the objectives of the agreement and actions to be undertaken by QUT
• Known or estimated dollar value (in the case of contracts)
• Period of the document, including review and extension options
• Date of commencement (contracts)
• Specified outcomes/benefits to be achieved for QUT (optional)
• Letters of termination or extension

For high risk contracts, fireproof facilities are available in Archives and Records Management Services and in Facilities Management Department.

Delegations

The following table describes the delegations relating to the most common documents and is not a comprehensive list. For full details refer to the Schedule of Authorities and Delegations (MOPP Appendix 3 - Part 2).

On occasion the other party may request that the seal be affixed to an agreement or memorandum of understanding. Such requests should be referred to the Registrar.

Description	Delegated Officer
Approves University-level strategic agreements	Vice-Chancellor
Signs all agreements or contracts where the financial worth cannot be valued	Vice-Chancellor
Signs all agreements or contracts where the value is greater than $1,000,000	Vice-Chancellor
Affixes the QUT Seal to deeds and any agreements which must be signed under the common seal as decreed by law or by Council, or on the insistence of the other party	Registrar
Approves all University level agreements and any memoranda of understanding not delegated as below to the Vice-Chancellor, Deputy Vice-Chancellor (Research and Commercialisation), Deputy Vice-Chancellor (International and Development) or Deans.	Registrar
Signs student placement agreements	Deans of faculty
Signs clinical education agreements	Deans of faculty
Signs formal documentation required to register and protect registrable intellectual property rights of the University throughout the world	Vice-Chancellor Deputy Vice-Chancellor (Research and Commercialisation) Registrar
Signs QUT research and consultancy contracts when value is $500,000 to $1,000,000	Deputy Vice-Chancellor (Research and Commercialisation)
Signs QUT research and consultancy contracts when value is $500,000 or less and the formal contract has not been negotiated by the Office of Commercial Services	Deputy Vice-Chancellor (Research and Commercialisation)
Signs formal documentation for collaborative research agreements, including the establishment of Cooperative Research Centres	Deputy Vice-Chancellor (Research and Commercialisation)
Signs all non-disclosure/confidentiality agreements relating to research and consultancy	Deputy Vice-Chancellor (Research and Commercialisation)
Approves University-level international institutional agreements	Deputy Vice-Chancellor (International and Development)
Approves faculty or divisional level international institutional agreements	Deputy Vice-Chancellor (International and Development)
Signs faculty or school- level non-legally binding Memoranda of Understanding (other than international MOUs).	Deans of faculty
Signs QUT research and consultancy contracts when value is $500,000 or less and the contract has been negotiated by the Office of Commercial Services	Manager, Office of Commercial Services