THIS AGREEMENT effective this _______ day of ______________ , 20___
, by and between ___________________________________________ (hereinafter
referred to as "Sponsor") and the UNIVERSITY OF MAINE SYSTEM acting
through the University of Maine, a non profit educational institution of the
State of Maine, (hereinafter referred to as "University").
WITNESSETH:
WHEREAS, the research program contemplated by this Agreement
is of mutual interest and benefit to University and to Sponsor, will further
the instructional and research objectives of University in a manner consistent
with its status as a non profit, tax exempt, educational institution, and may
yield benefits for both Sponsor and University through inventions, improvements,
and/or discoveries;
NOW THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree to the following:
ARTICLE 1 - DEFINITIONS
As used herein, the following terms shall
have the following meanings:
1.1
"Project" shall mean the description of the project as described in
Appendix A hereof, under the direction of
________________________ as Principal Investigator.
1.2 "Contract
Period" is ____________________, 20___ through ___________ _____, 20___ .
1.3
"Subsidiary" shall mean a corporation, company, university campus, or
other entity more than fifty percent (50%) of whose outstanding shares,
securities or other ownership instruments (representing the right, other than
as affected by events of default, to vote for the election of directors or
other managing authority) are, now or here after, owned or controlled, directly
or indirectly, by a party hereto, but such corporations, company or other
entity shall be deemed to be a Subsidiary only so long as such ownership or
control exists.
1.4 "University
Intellectual Property" shall mean individually and collectively all
inventions, improvements and/or discoveries which are conceived and/or made by
one or more employees of University, or jointly by one or more employees of
University and by one or more employees of Sponsor in performance of Project.
ARTICLE 2. RESEARCH WORK
2.1
University shall commence the performance of Project promptly after the
effective date of this Agreement, and shall use its best efforts to perform
such Project substantially in accordance with the terms and conditions of this
Agreement.
2.2 In the event
that the Principal Investigator becomes unable or is not available, University
and/or Sponsor shall have the option to terminate said Project in accordance
with Article 10 of this Agreement.
ARTICLE 3 - SPONSOR PROPRIETARY DATA
The free dissemination of information is an
essential and long standing policy of the University. However, under
exceptional circumstances, the University recognizes that it may properly hold
in confidence data supplied by a sponsor which the University considers
essential for the conduct of a research program. Accordingly, the University's
acceptance and use of any proprietary data which may be supplied by the Sponsor
in the course of this research project shall be subject to the following:
(a)
The data must be marked or designated in writing as proprietary to the Sponsor.
(b) The University
retains the right to refuse to accept any such data which it does not consider
to be essential to the completion of the project or which it believes to be
improperly designated, or for any other reason.
(c) Where the
University does accept such data as proprietary, it agrees to exercise all
reasonable efforts not to publish or otherwise reveal the data to others
outside the University without the permission of the Sponsor, unless the data
has already been published or disclosed publicly by third parties or is
required to be disclosed by order of a court of law. It is agreed that such
reasonable efforts by University will be in lieu of all other obligations or
liabilities of University relative to proprietary information.
ARTICLE 4. REPORTS AND CONFERENCES
4.1
Written project reports shall be provided by University to Sponsor every
(________) months, and a final report shall be submitted by University within
sixty (60) days of the conclusion of the Contract Period, or early termination
of this Agreement.
4.2 During the term
of this Agreement, representatives of University will meet with representatives
of Sponsor at times and places mutually agreed upon to discuss the progress and
results, as well as ongoing plans, or changes therein, of Project to be
performed hereunder.
ARTICLE 5 - COSTS, BILLINGS, AND
OTHER SUPPORT
5.1
It is agreed and understood by the parties hereto that, subject to Article 2,
total costs to Sponsor hereunder shall not exceed the sum of
(________________________________) dollars ($_________) unless this amount is
increased by written authorization from Sponsor. However, within the total
cost, the University must reserve the right to shift funds between budget
categories at the discretion of the Principal Investigator.
5.2 Payment shall be
made to University by Sponsor in advance according to the following schedule:
($________) plus 1/4 of remainder up front, quarterly payments thereafter,
retaining small amount (approx. 5%) for payment after receipt of final report.
All such payments shall be made by check payable to the University of Maine,
and mailed to:
Accountant
5717 Corbett Hall
University of Maine
Orono, Maine 04469
5.3 University shall
maintain complete and accurate accounting records in accordance with accepted
accounting practices for institutions of higher education. These records shall
be available for inspection, review, and audit at reasonable times by the
Sponsor, or its duly authorized representatives, at Sponsor's expense, for two
(2) years following the end of the University's fiscal year (July 1 June 30) in
which such costs are incurred.
5.4 The funds
provided by the Sponsor shall be applied to the direct and indirect costs of
this investigation. Indirect costs, otherwise called overhead, shall be
assessed at the applicable rate(s) in effect at the University at the time
direct costs are incurred.
5.5 Anything herein
to the contrary notwithstanding, in the event of early termination of this
Agreement by Sponsor pursuant to Article 10 hereof, Sponsor shall pay all costs
accrued by University as of the date of termination, including non cancelable
obligations, which shall include all non cancelable contracts and fellowships
or postdoctoral associate appointments called for in Appendix A, incurred prior
to the effective date of termination. After termination, any obligation of
Sponsor for fellowships or University's academic year following termination.
5.6. Sponsor shall
loan/donate the following equipment to University under the following
conditions: (_______________________________________), except as specified in
Appendix A. University shall retain title to any equipment purchased with funds
provided by Sponsor under this Agreement, except as specified in Appendix A.
ARTICLE 6 - PUBLICITY
6.1
Sponsor will not use the name of University, nor of any member of University's
Project staff, in any publicity, advertising, or news release without the prior
written approval of an authorized representative of University. University will
not use the name of Sponsor, nor any employee of Sponsor, in any publicity
without prior written approval of Sponsor. However, this does not preclude
Sponsor or University from publicly announcing the award of this Project.
ARTICLE 7 –
PUBLICATIONS
7.1
Sponsor recognizes that under University policy, the results of University
Project must be publishable and agrees that Researchers engaged in Project
shall be permitted to present at symposia, national, or regional professional
meetings, and to publish in journals, theses or dissertations, or otherwise of
their own choosing, methods and results of Project, provided, however, that
Sponsor shall have been furnished copies of any proposed publication or
presentation at least thirty five (35) days in advance of the submission of
such proposed publication or presentation to a journal, editor, or other third
party. Sponsor shall have thirty (30) days, after receipt of said copies, to
object to such proposed presentation or proposed publication because there is
patentable subject matter which needs protection. In the event that Sponsor
makes such objection, such Researcher(s) shall refrain from making such
publication or presentation for a maximum of one year from date of receipt of
such objection in order for University to file patent application(s) with the
United States Patent and Trademark Office and/or foreign patent office(s)
directed to the patentable subject matter contained in the proposed publication
or presentation.
ARTICLE 8 - INTELLECTUAL PROPERTY
8.1
All rights and title to University Intellectual Property under Project shall
belong to University and shall be subject to the terms and conditions of this
Agreement.
8.2 Rights to
inventions, improvements and/or discoveries, whether patentable or
copyrightable or not, relating to Project made solely by employees of Sponsor
shall belong to Sponsor. Such inventions, improvements, and/or discoveries
shall not be subject to the terms and conditions of this Agreement.
8.3 University will
promptly notify Sponsor of any University Intellectual Property conceived
and/or made during the Contract Period under Project. If Sponsor directs that a
patent application or application for other intellectual property protection be
filed, University shall promptly prepare, file, and prosecute such U.S. and
foreign application in University's name. Sponsor shall bear all costs incurred
in connection with such preparation, filing, prosecution, and maintenance of
U.S. and foreign application(s) directed to said University Intellectual
Property. Sponsor shall cooperate with University to assure that such
application(s) will cover, to the best of Sponsor's knowledge, all items of
commercial interest and importance. While University shall be responsible for
making decisions regarding scope and content of application(s) to be filed and
prosecution thereof, Sponsor shall be given an opportunity to review and
provide input thereto. University shall keep Sponsor advised as to all
developments with respect to such application(s) and shall promptly supply to
Sponsor copies of all papers received and filed in connection with the
prosecution thereof in sufficient time for Sponsor to comment thereon.
8.4 If Sponsor
elects not to exercise its option under Article 8.3 or decides to discontinue
the financial support of the prosecution or maintenance of the protection,
University shall be free to file or continue prosecution or maintain any such
application(s), and to maintain any protection issuing thereon in the U.S. and
in any foreign country at University's sole expense.
ARTICLE 9 - GRANT OF RIGHTS
9.1
Pursuant to Article 8.3, University grants Sponsor the first option, at
Sponsor's sole selection, for either a non exclusive, royalty free license or,
for consideration, an exclusive license with a right to sublicense on terms and
conditions to be mutually agreed upon. The option shall extend for a time period
of one year from the date of termination of the Agreement.
ARTICLE 10 - TERM AND TERMINATION
10.1
This Agreement shall become effective upon the date first hereinabove written
and shall continue in effect for the full duration of the Contract Period
unless sooner terminated in accordance with the provisions of this Article. The
parties hereto may, however, extend the term of this Agreement for additional
periods as desired under mutually agreeable terms and conditions which the
parties reduce to writing and sign. Either party may terminate this Agreement
with or without cause upon ninety (90) days prior written notice to the other.
10.2 In the event
that either party hereto shall commit any breach of or default in any of the
terms or conditions of this Agreement, and also shall fail to remedy such
default or breach within ninety (90) days after receipt of written notice
thereof from the other party hereto, the party giving notice may, at its option
and in addition to any other remedies which it may have at law or in equity,
terminate this Agreement by sending notice of termination in writing to the
other party to such effect, and such termination shall be effective as of the
date of the receipt of such notice.
10.3 In the event of
an unavoidable delay University may withdraw from further performance of this
Agreement, upon giving Sponsor thirty (30) days advance written notice. The
following reasons shall be considered unavoidable delays:
A. The University's
state-provided funds have been substantially curtailed or diminished; or
B.
The University loses one of the key personnel on this project and is unable to
find a replacement suitable to Sponsor.
It
is further agreed that neither party shall be liable for unavoidable delays
caused by fire, flood, accident, war, act of government (state and federal) or
any other cause reasonably beyond its control, but shall use all reasonable
efforts to minimize the extent of the delay.
10.4 Termination of
this Agreement by either party for any reason shall not affect the rights and
obligations of the parties accrued prior to the effective date of termination
of this Agreement. No termination of this Agreement, however, effectuated,
shall affect the university's rights and duties under Article 7 and Article 8
hereof, or release the parties hereto from their rights and obligations under
Articles 5, 6, 7, 8, and 13.
ARTICLE 11 - ARBITRATION
Any dispute arising out of or relating to
this Agreement, or any breach thereof, shall be settled by arbitration
conducted in the State of Maine in accordance with the rules of the American
Arbitration Association. The award rendered by the arbitrators shall be final,
and judgment may be entered upon in any court having jurisdiction thereof.
ARTICLE 12 - INDEMNIFICATION
Sponsor hereby waives any claim against and
agrees to indemnify and hold harmless the University, its officers, employees
and agents from and against any and all claims, damages, losses, and expenses
including attorney's fees arising out of or resulting from performance under
this agreement, except to the extent that such claims, damages, losses, and
expenses arise from the willful or negligent act or omission of the University.
Sponsor hereby expressly waives all employer immunity under Maine's Workers’
Compensation Act, 39 M.R.S.A. Section 4.
ARTICLE 13 - INDEPENDENT CONTRACTOR
13.1
In the performance of all services hereunder:
(a)
University shall be deemed to be and shall be an independent contractor and, as
such, University shall not be entitled to any benefits applicable to employees
of Sponsor.
(b) Neither party
is authorized or empowered to act as agent for the other for any purpose and
shall not on behalf of the other enter into any contract, warranty, or
representation as to any matter. Neither shall be bound by the acts or conduct
of the other.
(c) Sponsor and any
of sponsor's employees or agents acting under this Agreement shall not be
entitled to any benefits applicable to the employees of the University.
ARTICLE 14 - INSURANCE
14.1
University warrants and represents that University has comprehensive general
liability insurance, for its officers, employees and agents acting within the
scope of their employment by the University.
14.2 Each party
hereby assumes any and all risks of personal injury and property damage
attributable to the willful or negligent act or omission of its own officers,
employees and agents.
ARTICLE 15 - GOVERNING LAW
15.1
This Agreement shall be governed and construed in accordance with the laws of
the State of Maine.
ARTICLE 16 - ASSIGNMENT
16.1
This Agreement shall not be assigned by either party without the prior written
consent of parties hereto.
ARTICLE 17 - AGREEMENT MODIFICATION
17.1
Any agreement to change the terms of this Agreement in any way shall be valid
only if the change is made in writing and approved by mutual agreement of
authorized representatives of the parties hereto.
ARTICLE 18 - NOTICES
18.1
Notices, invoices, communications, and payments hereunder shall be deemed made
if given by registered or certified envelope, postage prepaid, and addressed to
the party to receive such notice, invoice, or communication at the address
given below, or such other address as may hereafter be designated by notice in
writing:
If to Sponsor:
SPONSOR ADDRESS CITY STATE ZIP CODE
If to University:
James S. Ward, IV
Authorized Institutional Representative
5717 Corbett Hall
University of Maine
Orono, Maine 04469-5717
If Technical Matter:
______________________________
______________________________
______________________________
University of Maine
Orono, Maine 04469
IN WITNESS WHEREOF, the parties have caused these presents to be executed
in duplicate as of the day and year first above written.
SPONSOR UNIVERSITY OF MAINE SYSTEM Acting through the University of Maine _______________________________ __________________________________ By:____________________________ By: James S. Ward, IV Title:_________________________ Title: Authorized Institutional Representative Date: _________________________ Date:____________________________
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