RESEARCH AGREEMENT BY AND BETWEEN NEW ENERGY SOLAR CORPORATION AND THE UNIVERSITY OF SOUTH FLORIDA
Exhibit 10.3 Redacted USF Sponsored Research Agreement.
CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER A CONFIDENTIAL TREATMENT REQUEST, PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED, AND RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. THE REDACTED TERMS HAVE BEEN MARKED IN THIS EXHIBIT AT THE APPROPRIATE PLACE WITH FOUR ASTERISKS [****].
BY AND BETWEEN
NEW ENERGY SOLAR CORPORATION
AND
THE UNIVERSITY OF SOUTH FLORIDA
THIS RESEARCH AGREEMENT IS MADE AND ENTERED INTO BY AND BETWEEN NEW ENERGY SOLAR COPRORATION (a wholly owned subsidiary of New Energy technologies, Inc.), a corporation having a place of business located at 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx, XX 00000 (“New Energy”), and the University of South Florida Board of Trustees, a public body corporate ("University"), for support to the project entitled “(Semitransparent Flexible Power Foil (SFPF))”. For consideration of the mutual promises, covenants, and obligations contained herein, New Energy hereby retains the University to undertake certain activities described in Attachment 1. The parties agree as follows:
I. PERIOD OF PERFORMANCE
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II. WORK PLAN / PROJECT ADMINISTRATION
The University shall perform the activities described in Attachment 1 and will comply with all statutory requirements and applicable regulations in the conduct of the project.
The University agrees that such activities will be directed by:
The University Project Director:
Xx. Xxxxxxx Xxxxx
University of South Florida
PHYSICS DEPARTMENT
0000 X. XXXXXX XXXXXX
Xxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
Xxxxx, Xxxxxxx [xxxxxx@xxx.xxx.xxx]
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The University Administrative Contact:
Xxxxxx Xxxx
Sponsored Research Administrator
University of South Florida
Division of Sponsored Research
0000 Xxxxxxxx Xxxx Xxx 000
Xxxxx, XX 00000-0000
(000) 000-0000
(000) 000-0000 (fax)
xxxxx@xxxxxxxx.xxx.xxx
NEW ENERGY Representatives:
Project Director:
Xxxxxxx X. Xxxxx, Esq.
New Energy Solar Corporation
0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
xxxxxx@xxxxxxxxxxxx.xxx
Administrative Contact:
Xxxxxxx X. Xxxxx, Esq.
0000 Xxxxxxxxxxx Xxxxxx, XX
00xx Xxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
(0000 000-0000 (fax)
xxxxxx@xxxxxxxxxxxx.xxx
All deliverables/invoices submitted by the University must be approved in writing by New Energy’s Project Director prior to payment by New Energy to the University.
III. ALLOCATION OF FUNDS
New Energy agrees to compensate the University as per Attachment 2, ****. It is further agreed
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that all invoices should contain an original signature of an authorized official of the University and should be sent to New Energy’s Project Director for approval (see Article II for the address). Invoices shall be submitted to New Energy on a monthly basis. Payments shall be remitted to:
University of South Florida
University Controller’s Office
Cashier’s Office
4202 X. Xxxxxx Ave., ADM 147
Xxxxx, XX 00000
IV. PAYMENT RESPONSIBILITIES
New Energy shall issue payment in U.S. dollars within 30 days after receipt of an acceptable invoice and receipt, inspection, and acceptance of goods and/or services provided in accordance with the terms and conditions of this Agreement.
V. INDEPENDENT CONTRACTOR
The relationship of the parties is that of mutually independent contractors. Each party and its officers, employees, agents, subcontractors, or other contractors shall not be deemed by virtue of this Agreement to be the officers, agents, or employees of the other party. Each party assumes the risk of all liability arising from its respective activities pursuant to this Agreement and from the acts or omissions of its respective officers, agents, and employees.
VI. TERMINATION
This Agreement may be canceled by either party upon no less than thirty (30) days written notice, with or without cause; notice shall be delivered by certified mail, return receipt requested, or in person with proof of delivery. In case of cancellation, only the percent of satisfactory progress actually achieved to the date of cancellation will be due and payable to the University and University will refund to New Energy any unused funds that it may have in escrow.
In the event that University’s Project Director becomes unable or unwilling to continue the project activities hereunder, and a mutually acceptable substitute is not available, New Energy shall have the option to cancel this Agreement.
VII. PUBLICITY
Neither party shall use the name of the other party, nor of any employees of the parties, in any publicity, advertising, or news release without the prior written approval of an authorized representative of that party.
Under the provisions of Florida Statute 1004.22, the University shall make available, upon request, the title and description of a research project, the name of the researcher, and the amount and source of funding provided for the project.
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University acknowledges that New Energy is a wholly owned subsidiary of a corporation having a reporting obligation under the Securities Exchange Act of 1934, as amended, which has or may have certain disclosure and filing obligations under applicable law, including but not limited to the public announcement and disclosure of this Agreement and the filing of the same with the United States Securities and Exchange Commission; it is acknowledged and agreed that such disclosure and filing shall not be deemed a violation of this Agreement.
VIII. CONFIDENTIALITY
In the course of performing work under this Agreement, it may be necessary for either party to disclose to the other certain confidential and/or proprietary information or data. All such confidential information will be clearly identified in writing as confidential, or if given orally, will be reduced to writing within thirty (30) days. Each party agrees to hold the other’s confidential information in confidence from date of disclosure until five (5) years from the date such confidential information is either returned to the disclosing party or destroyed as requested by the party. The parties shall take reasonable precautions to avoid disclosure, publication or dissemination of such confidential information and to use such confidential information only in connection with the project. No obligation of confidentiality applies to any information which was already in the receiving party’s possession prior to its receipt from the disclosing party; becomes publicly known or available through no breach of this Agreement by the receiving party; is acquired by the receiving party from a third party without notice or restrictions of confidentiality; is independently developed by the receiving party’s personnel to whom the providing party’s confidential information had not been disclosed; or is required to be disclosed by law or governmental regulation, in which case both parties will work together in order to comply with such request.
This Agreement and the contents hereof constitute a confidential business relationship between the parties. Each party acknowledges that significant damage could be done to the other one should the terms of this Agreement become public knowledge. Both parties agree that they will not reveal the terms of this Agreement to any third party (excluding agents, attorneys, representatives and others with whom they have a legal obligation to disclose, including, but not limited to, government agencies and regulatory authorities) except within the restrictive confines of a Confidentiality Agreement, and that they will exercise reasonable precautions to insure that neither they nor their employees or agents shall allow the terms of the Agreement to become public knowledge.
IX. PUBLICATIONS
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X. INTELLECTUAL PROPERTY
University agrees that the University Project Director will promptly disclose all intellectual property generated during the course of this Agreement to its Division of Patents & Licensing in accordance with the Statement of Policies and Procedures for Inventions and Works (0-300), and the
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Division of Patents & Licensing will promptly disclose such intellectual property to New Energy. Inventorship shall be determined in accordance with U.S. Patent law and ownership shall follow inventorship. Intellectual property, inventions, improvements and/or discoveries, whether or not patentable or copyrightable, which are conceived and/or made while performing this project and during the course of this Agreement, covered under Attachment 1 in which there is at least one inventor of University and one inventor of New Energy, whether or not utilized or otherwise incorporated into this project, shall be jointly owned by University and New Energy.
The parties agree that any existing background intellectual property and/or inventions and technologies of New Energy, the University, the University Project Director or University employees existing prior to the execution of this Agreement are their own separate property, respectively, and are not affected by this Agreement. Neither party shall acquire any claims to or rights in any background intellectual property and/or technologies in existence prior to the execution date of this Agreement.
XI. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the State of New York.
XII. INSURANCE
University assumes all risk of personal injury and property damage arising from its activities pursuant to this Agreement that are attributable to the negligent acts or omissions of University and its officers, agents, and employees while acting within the scope of their employment by University. This statement shall not be construed or interpreted as consent by University to be sued except as provided by Florida law or as a waiver of University’s sovereign immunity beyond that provided in Section 768.28, Florida Statutes.
XIII. DELEGATION OF AUTHORITY
This Agreement is valid and enforceable only upon being signed by persons authorized to bind the University hereto, and by all persons required by Florida law or University policy to sign an agreement of this nature in order to bind the University hereto.
XIV. CONTINUAL UPDATES ON PROGRESS OF RESEARCH
The University Project Director shall provide ongoing written progress reports to New Energy on a monthly basis and a comprehensive written research report due on the final calendar day of each calendar quarter. The University Project Director shall provide to New Energy information related to experiments and/or new news related to ongoing research that may be disseminated to New Energy’s stakeholders.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties have caused this Agreement, which includes
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Attachments 1 and 2, to be executed by their undersigned duly authorized officials.
University of South Florida
Board of Trustees, a public body corporate
Reviewed by: SIGNED BY:
_______________________ ___________________________
Xx. Xxxxxxx Xxxxx Xxxxx Xxxxxxx, Director
University Project Director Division of Sponsored Research
SGS Review:
_________
New Energy Solar Corporation
____________________________
Xxxxxxx X. Xxxxx, Esq.
President
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ATTACHMENT 1
SCOPE OF WORK
Development of Semitransparent Flexible Power Foil (SFPF) for smart window technology
Research Team:
PI: Xx. X. Xxxxx
Senior Scientist: Xx. Xxxxx
Graduate Student: Xxxxx Xxxxx
University of South Florida
1. Overall Objective
****
2. Background
****
3. Novelty of the SFPF based Solar Array
· ****
· ****
· ****
· ****
4. Plan of Work
Stage 1: ****
Goal:
****
Stage 2: ****
Goal:
****
Stage 3: ****
Goal:
****
Stage 4: ****)
Goal:
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****
5. Reporting Requirements
Principal Investigator will promptly man an Invention Disclosure Report to New Energy with respect to any new and useful process, machine, manufacture or composition of matter conceived and reduced to practice, during the term of this Agreement in the performance of research associated with SFPF.
As per Section XIV of this agreement, Principal investigator will furnish monthly progress reports to New Energy on a monthly basis. In addition to the progress reports, as agreed to by New Energy and the Project Director, the Project Director shall provide New Energy information on experiments or new news related to the ongoing research so that New Energy can keep its shareholders apprised of the progress of the research.
ATTACHMENT 2
METHOD OF PAYMENT
[Include here invoicing instructions; invoicing schedule; contact name and address to whom invoices should be mailed; include all reports/deliverables due with the invoices]
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Payments will be made to the University upon presentation of an Invoice by the Principal based upon the following schedule:
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Justification for Budget Proposal
1. Direct labor
****
2. Fringe and Benefit
****
3. Travel
****
4. Other direct cost
****
5. Indirect costs. ****
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