Research and Development (R&D) Agreement templates (Australia)

If your company's aiming to create new designs, ideas, processes or products, you may well need a research and development agreement template. In this guide, we signpost you to sample templates that can be tailored to your specific needs. Plus, we cut through the legal jargon and let you know what needs to be included in your agreement.

What is a Research and Development Agreement?

At its simplest, a Research and Development Agreement is a legally binding document that sets out the terms and conditions between a client and a research provider. It outlines what work is to be done and who owns the intellectual property of the results of that work. This type of agreement typically covers a number of other elements such as liability, termination and dispute resolution.

When should I use this type of agreement?

You can use this agreement when you wish to hire a research service provider to help you generate new ideas and concepts. All parties should sign the agreement before work begins or any money is exchanged.

Here are some of the key situations for when you might use this agreement:

• Expertise. You might be hoping to utilise the expertise of a research provider (commonly known as a Research Service Provider, or RSP).
• Tax offset incentives. The Australian Taxation Office (ATO) provides Research and Development tax offset incentives to some incorporated corporations. Using an agreement can help prove that you're eligible.
• Tax offset eligibility. For some smaller businesses, a Research and Development tax offset is only available if the company uses a research service provider (RSP).

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Is it possible to claim tax relief for my research and development?

It may well be possible, but this will depend on your circumstances. The ATO provides a 43.5% refundable tax offset incentive on research costs for eligible entities who conduct research and development. A specialist accountant can help claim this offset at tax time. The government's website has a useful list of research service providers who can help you meet eligibility.

Research and Development Agreement vs Joint Development Agreement vs IP Agreement

A Research and Development Agreement is also known as an R&D Agreement or a Joint Development Agreement (in other words, the terms are interchangeable). An IP Agreement, or an Intellectual Property Agreement, is similar to a Research and Development Agreement and will form part of it. The key difference is that an IP Agreement is focused on existing IP and may not include what happens to new discoveries that come about as a result of a piece of research.

What does a Research and Development Agreement include and not include?

You can tailor your Research and Development Agreement to your individual needs. There are a number of key clauses that are usually included to protect the interests of the client and the research provider. These may include:

Typically included

• Statement of relationship. The research provider usually works independently of the client's business and is responsible for their own tax matters.
• Intellectual property clause (IP). It should be clear, for example, that although researchers may discover or create intellectual property, the rights belong solely to the client.
• Non-disclosure clause. A confidentiality clause may detail that the provider won't share any sensitive client information. This can include research results.
• Termination clause. State how the agreement might end by a certain date or by an action by either party. Include reasonable notice periods and compensation for early termination.

Typically not included

It's helpful to prove eligibility for the ATO tax offset through this type of agreement. Your eligibility success may be greater if you don't include activities that will make you ineligible. Typically, you won't need to include the following:

• Activities with outcomes that can be known or determined in advance on the basis of current knowledge, information or experience.
• Activities that do not proceed from hypothesis to experiment, observation and evaluation, and lead to logical conclusions.
• Market research.

Do I need a lawyer for a Research and Development Agreement?

As previously mentioned, a Research and Development Agreement is legally binding. So, it might make sense for you to seek the help of a legal professional (but ultimately, that's your call to make). To keep costs down, you can use templates and samples to prepare your own agreement. Then a legal professional could look over the document to point out anything you might have missed, or anything that should be edited.

How do I write a Research and Development Agreement?

This type of agreement can be as short as one page or go into far more detail. One way to start is to familiarise yourself with an Independent Contractor Agreement before you look to develop a full Research and Development Agreement. Other options include:

• The Australian Government's IP Australia website has useful checklists that can help plan both the project and the agreement.
• tpguidelines.com and Law Insider both have sample clauses that you can use to write a Research and Development Agreement.
• A Research Service Provider (RSP) itself may have a set agreement that it uses with clients. This could provide a useful springboard for you to start tailoring an agreement to your specific needs.