AGREEMENT FIXED-PRICE ASU Reference No. 09022547
Exhibit
10.3
FIXED-PRICE
ASU
Reference No. 09022547
THIS
AGREEMENT is made and entered into by and between Solterra Renewable
Technologies, Inc. (hereinafter called "Sponsor"), and the Arizona Board of
Regents for and on behalf of Arizona State University (hereinafter called
"ASU").
WHEREAS
Sponsor desires that ASU perform certain services as described in the scope of
work attached hereto and incorporated herein as Exhibit A, and ASU desires to
perform such services upon and subject to the terms and conditions hereinafter
set forth.
NOW,
THEREFORE, the parties agree as follows:
ARTICLE
I. SCOPE OF WORK. ASU shall use all
reasonable efforts to perform the services and deliver any reports or other
items specified in Exhibit A attached hereto.
ARTICLE
II. PROJECT DIRECTOR. ASU shall provide
Xxxxxxx Xxxxxxx, of the ASU School of Materials and Flexible Display Center, as
Project Director for work under this Agreement.
ARTICLE
III. PERIOD OF PERFORMANCE. This
Agreement shall begin on October 1, 2008 and shall terminate on September 30,
2009. This Agreement may be modified or extended at any time by
mutual written consent of both parties.
ARTICLE
IV. SPECIAL PROVISIONS.
|
1.
|
Compensation. Compensation
shall be on a fixed-price basis. Sponsor shall compensate ASU
in an amount not to exceed $835,000, for ASU's services hereunder for year
one only. Sponsor shall remit according to the following
schedule of invoices against the total contract
price:
|
|
Date
Due
|
Amount
|
|||
|
Upon
signing agreement
|
$ | 334,000 | ||
|
Quarterly
Payment 01-01-09
|
$ | 136,635 | ||
|
Quarterly
Payment 04-01-09
|
$ | 136,635 | ||
|
Quarterly
Payment 07-01-09
|
$ | 136,635 | ||
|
Final
Payment 9-30-09
|
$ | 91,095 | ||
|
Total
Year 1
|
$ |
835,000
|
||
Option
Year 2 for $546,300 and Option Year 3 for $556,000 are not exercised at this
time.
1
Invoices
are due and payable within 30 days. The remaining amount of the contract price
due under this Agreement shall be paid upon receipt of invoices from ASU issued
quarterly for the duration of the period of performance up to the contract
value.
ASU
reserves the right to subject invoices not paid within thirty (30) days of the
invoice date to a 1% per month late fee on the unpaid balance for any amounts
not in dispute. ASU reserves the right to discontinue the services if Sponsor
fails to make payments within 30 days of receipt of invoice.
In the
event of non payment, ASU may terminate all further work on the project and seek
full payment from the Sponsor for all work performed and all expenses incurred
including allocable cost, pursuant to the termination clause of this agreement
including the collection of payment.
Should it
become necessary for ASU to commence collection proceedings or retain an
attorney to enforce any of the terms of this Agreement, the Sponsor shall pay
attorneys’ fees and the costs of collection incurred by ASU.
|
2.
|
Publications. Sponsor
recognizes that under ASU policy the results of work performed under this
Agreement must be publishable and agrees that ASU and its employees and
students engaged in work under this Agreement shall be free to present at
symposia or professional meetings, and to publish in journals, theses or
dissertations, or otherwise of their own choosing, methods and results of
the work performed under this Agreement. Upon written request
by Sponsor, copies of proposed manuscripts will be furnished to Sponsor
for review prior to publication. In no event will ASU delay
publication for more than thirty (30) days from date of submittal of
manuscript for Sponsor review.
|
|
3.
|
Notices. All
notices under this Agreement given by either party to the other shall be
in writing and shall be sent by U.S. Postal Service, first class,
facsimile or e-mail. Addresses are as
follows:
|
For
ASU: Office for Research
& Attn: Xxxxxx
Xxxxx
Sponsored
Projects
Admin.
Assistant Director, Research Admin
Arizona State
University e-mail:
xxxxxx.xxxxx@xxx.xxx
P.O. Box
873503 cc:
Xxxxxxx.Xxxxxxx@xxx.xxx
(Street
Address: 1120 X. Xxxx
Mall) cc:
Xxxxxxxx.Xxxxxxx@xxx.xxx
Xxxxx,
Xxxxxxx 00000-0000
Phone: 000-000-0000 Fax: 000-000-0000
For
Sponsor: Solterra Renewable Technologies Inc.
00000 X.
Xxxxxxxx
Xx Xxxx: Xxxxxxx
X. Xxxxxxx
Xxxxxxxxxx
XX
00000
President & CEO
Phone:
000-000-0000 email: xxxxxxxx0@xxx.xxx
Fax: 000-000-0000
ARTICLE
V. GENERAL PROVISIONS.
|
1.
|
Entire
Agreement. This Agreement embodies the entire
understanding of the parties and supersedes any other agreement or
understanding between the parties relating to the subject
matter. The parties agree that should any part of this
Agreement be held to be invalid or void, the remainder of the Agreement
shall remain in full force and effect and shall be binding upon the
parties.
|
|
2.
|
Waivers. No
waiver, amendment or modification of this Agreement shall be valid or
binding unless written and signed by the parties. Waiver by
either party of any breach or default of any clause of this Agreement by
the other party shall not operate as a waiver of any previous or future
default or breach of the same or different clause of this
Agreement.
|
|
3.
|
Assignment. Neither
party may assign any rights hereunder without the express, written, prior
consent of both parties.
|
|
4.
|
Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of
Arizona.
|
2
|
5.
|
Cancellation
for Nonappropriations. The parties recognize that
performance by ASU depends upon appropriation of funds by the State
Legislature of Arizona. If the Legislature fails to appropriate
the necessary funds, or if ASU's appropriation is reduced during the
fiscal year, ASU may reduce the scope of this Agreement if appropriate or
cancel this Agreement without further duty or obligation. ASU
agrees to notify Sponsor as soon as reasonably possible after ASU knows of
the loss of funds.
|
|
6.
|
Conflict
of Interest. This Agreement is subject to the provisions
of A.R.S. 38-511. The State of Arizona may cancel this
Agreement if any person significantly involved in negotiating, drafting,
securing or obtaining this Agreement for or on behalf of the Arizona Board
of Regents becomes an employee in any capacity of any other party or a
consultant to any other party with reference to the subject matter of this
Agreement while the Agreement or any extension thereof is in
effect.
|
|
7.
|
Independent
Contractor. ASU is an independent contractor and shall be
free to exercise its discretion and independent judgment as to the method
and means of performance of its work hereunder. ASU employees
shall not be considered employees of Sponsor, and neither ASU nor Sponsor
personnel will, by virtue of this Agreement, be entitled or eligible, by
reason of this agreement, to participate in any benefits or privileges
given or extended by the other party to its
employees.
|
|
8.
|
Termination. Either
party may at any time terminate this Agreement by giving the other party
not less than thirty (30) days prior written notice. In the
event this Agreement is canceled by Sponsor, Sponsor shall remain
responsible for payment to ASU for all work performed through the date of
termination and for reimbursement to ASU of all non-cancelable commitments
incurred in the conduct of the research. Non-cancelable
commitments shall include employment commitments to ASU personnel through
the end of the semester following any such termination by
Sponsor. In the event ASU terminates this Agreement any unused
funds from the advance will be
returned.
|
|
9.
|
Dispute
Resolution. In the event of any dispute, claim, question,
or disagreement arising from or relating to this agreement or the breach
thereof, the parties hereto shall use their reasonable efforts to settle
the dispute, claim, question, or disagreement. To this effect, they shall
consult and negotiate with each other in good faith and, recognizing their
mutual interests, attempt to reach a just and equitable solution
satisfactory to both parties. Notice is provided of Sections
12-1518 and 12-133, Arizona Revised
Statues.
|
|
10.
|
Insurance. ASU
maintains general liability insurance and worker’s compensation coverage
as required by state law and pertinent federal laws and regulations under
the State of Arizona Risk Management
Plan.
|
|
11.
|
Nondiscrimination. The
parties agree to comply with all applicable state and federal laws, rules,
regulations and executive orders governing equal employment opportunity,
immigration, nondiscrimination, including the Americans with Disabilities
Act, and affirmative action.
|
|
12.
|
News
Release. Sponsor may not use the name of ASU in news
releases, publicity, advertising, or other promotion, without the prior
written consent of ASU, except for documents used for internal consumption
by Sponsor.
|
|
13.
|
Service
Marks and Trademarks. Neither party
shall use any service marks, trademarks, logos or other marks of the other
party without the express written approval of the other party. The use of
any marks must comply with the owner ’s requirements,
including using the “circle R” indication of a registered
trademark.
|
3
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
its duly authorized representatives on the respective dates entered
below.
| ARIZONA BOARD OF REGENTS, | SOLTERRA RENEWABLE | ||||
|
FOR
AND ON BEHALF OF
ARIZONA
STATE UNIVERSITY
|
TECHNOLOGIES, INC | ||||
| By: |
/s/
|
By: |
/s/
|
||
|
Xxxxxx
X. Xxxxx
|
Xxxxxxx
X. Xxxxxxx
|
||||
|
Assistant
Director
|
President
& CEO
|
||||
| Research Administration | |||||
| Date: | Date: | ||||
4
