This Agreement, entered into this day of , 20 , between
, a company organized under the laws of the State of
, and having an office at , hereinafter referred to as “COMPANY;”
UNIVERSITY OF PITTSBURGH – OF THE COMMONWEALTH SYSTEM OF
HIGHER EDUCATION, a non-profit Pennsylvania corporation having an office at Office of Research, 350 Thackeray Hall, Pittsburgh, Pennsylvania 15260, hereinafter referred to as “UNIVERSITY.”
WHEREAS, COMPANY desires to obtain certain services from the UNIVERSITY’s Nanoscale Fabrication and Characterization Facility and UNIVERSITY desires and agrees to provide such services;
NOW, THEREFORE, in consideration of the mutual promises and undertakings set forth herein and intending to be legally bound, the parties agree as follows:
1.0 UNIVERSITY SERVICES
1.01 UNIVERSITY agrees to provide the following services (the “Services”): a.
No changes in the responsibility of COMPANY and/or the UNIVERSITY to be performed hereunder shall become effective until mutually agreed upon by the COMPANY and the UNIVERSITY in writing. Such changes as are mutually agreed to by the COMPANY and the UNIVERSITY which require additional services or a reduction of services to be performed by the UNIVERSITY under the Agreement and an
adjustment of the amount to be paid to the UNIVERSITY as provided herein shall be incorporated in written amendments to this Agreement.
2.01 The Term of this Agreement is from to .
2.02 Any extension must be in writing upon terms mutually agreeable to the parties hereto.
3.01 The COMPANY agrees to pay the UNIVERSITY the fixed fee of
($ ) for the services provided hereunder:
COMPANY agrees to pay $ on the following schedule: By : $
By : $
The COMPANY will receive an invoice at least thirty (30) days prior to the payment due date. The staff of the UNIVERSITY will not be able to continue work for the COMPANY if payments are past due.
4.01 UNIVERSITY shall provide the necessary Workers’ Compensation and Employer’s Liability insurance to meet statutory liability limits of the Commonwealth of Pennsylvania for the employees of UNIVERSITY involved in the Services.
4.02 COMPANY represents and warrants that it maintains a policy or program of insurance or self insurance at levels sufficient to support the indemnification obligations assumed under this agreement, in an amount not less than three million dollars ($3,000,000) per occurrence. Upon request, COMPANY shall provide to the UNIVERSITY evidence of its insurance or self-insurance.
5.01 UNIVERSITY shall not be responsible or liable for any injuries or losses, which may result from the implementation or use by COMPANY or others of the results from the Services or research data generated by UNIVERSITY.
5.02 COMPANY agrees to indemnify, defend and hold harmless UNIVERSITY, its trustees, officers, agents and employees with respect to any expense, claim, liability, loss, damage, or costs (including attorneys’ fees) in connection with or in any way arising out of the use of the data or results from the Services.
6.0 DISCLAIMER OF WARRANTY
6.01 Any information, materials or Services furnished by UNIVERSITY pursuant to this Agreement are on an “as is” basis. UNIVERSITY makes no warranties of any kind, either express or implied, as to any matter, including but not limited to warranty of fitness for a particular purpose, merchantability, patentability, or that use by COMPANY of the results obtained will be free from infringement of patents, copyrights, trademarks or other rights of third parties.
7.0 INTELLECTUAL PROPERTY RIGHTS
7.01 UNIVERSITY shall own all rights, title and interest in and to inventions and/or discoveries developed by UNIVERSITY faculty, staff or students under this Agreement. COMPANY shall own all rights, title and interest in and to inventions and/or discoveries, whether patentable, copyrightable or otherwise, developed solely by COMPANY’s employees, servants or agents. UNIVERSITY and COMPANY shall jointly own inventions and/or discoveries of employees of both parties.
8.01 Either party may terminate this Agreement prior to the expiration of the designated term by giving sixty (60) days written notice to the other.
8.02 Upon early termination of this Agreement, COMPANY shall pay all costs accrued by UNIVERSITY as of the date of termination, including all non-cancelable obligations for the term of the Agreement, which shall include all appointments of research staff incurred prior to the effective date of the termination.
9.01 COMPANY will not use the name of UNIVERSITY, nor any member of UNIVERSITY personnel, in any publicity, advertising, or news release without the prior written approval of UNIVERSITY.
10.0 GOVERNING LAW
10.01 This Agreement shall be deemed to be a contract under, and shall be governed by and construed and enforced in accordance with, the laws of the Commonwealth of Pennsylvania.
11.01 Nothing contained in this Agreement is to be construed to constitute UNIVERSITY and COMPANY as partners or joint venturers of each other, or to constitute the employees, agents or representatives of either party as the employees, agents or representatives of the other party, it being intended that the relationship between the UNIVERSITY and the COMPANY shall at all times be that of independent contractors. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of, or in the name of, the other party; or to bind the other party to any contract, agreement or undertaking with any third party.
11.02 UNIVERSITY agrees that it is responsible for withholding and paying to appropriate taxing bodies all statutory payroll taxes that are applicable to UNIVERSITY personnel.
12.01 UNIVERSITY acknowledges that it may be necessary for COMPANY to disclose information to the UNIVERSITY, which COMPANY considers proprietary or confidential in order for the UNIVERSITY to perform the Services. To preserve the information’s proprietary or confidential nature, COMPANY agrees to either:
1) clearly mark the term “CONFIDENTIAL INFORMATION” upon the information and forward it only to the UNIVERSITY in writing, or 2) orally disclose to the UNIVERSITY the information’s proprietary or confidential nature, subsequently indicate the information’s nature in a writing addressed to the UNIVERSITY, via certified or registered mail, and clearly mark the writing or information with the term “CONFIDENTIAL INFORMATION” and deliver it to the UNIVERSITY within thirty (30) days of disclosure.
12.02 UNIVERSITY shall not disclose or cause to be disclosed any information, without the COMPANY’s prior written consent, designated by COMPANY to be proprietary and confidential in accordance with Paragraph 12.01 hereof.
12.03 UNIVERSITY’s obligation of non-disclosure shall not apply to any or all of COMPANY’s purported proprietary or confidential information which:
a. is in the public domain at the time of disclosure;
b. becomes part of the public domain after disclosure through no fault of UNIVERSITY; or
c. is in UNIVERSITY’s possession at the time of COMPANY’s disclosure or is disclosed to the UNIVERSITY by a third party after the time of COMPANY’s disclosure, through no fault of the UNIVERSITY.
13.0 Export Control Regulations.
Notwithstanding any other provision of this Agreement, the parties understand and agree that they are subject to, and agree to abide by, any and all applicable United States laws and regulations controlling the export of technical data, computer software, laboratory prototypes and other commodities. The University’s obligations hereunder are contingent on its ability to comply with applicable United States export and embargo laws and regulations. It is the expectation of the University that the work done pursuant to this Agreement will not involve export control technology or data. As an institution of higher learning, the University does not wish to take receipt of export-controlled information except as may be knowingly and expressly agreed to in writing signed by an authorized representative of the University and for which the University has made specific arrangements. Sponsor agrees that it will not provide or make accessible to University any export-controlled materials (including, without limitation, equipment, information and/or data) without first informing University of the export-controlled nature of the materials and obtaining from University’s Office of Research its prior written consent to accept such materials as well as any specific instructions regarding the mechanism pursuant to which such materials should be passed to University. Sponsor agrees to comply with any and all applicable U.S. export control laws and regulations, as well any and all embargoes and/or other restrictions imposed by the Treasury Department’s Office of Foreign Asset Controls.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized representatives.
WITNESS: UNIVERSITY OF PITTSBURGH – OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION
By: Name: George E. Klinzing
Title: Vice Provost, Research