lehigh energy resource center: elp membership agreement

8/12/2019 Lehigh Energy Resource Center: ELP Membership Agreement

1/5

1

ENERGY LIAISON PROGRAM MEMBERSHIP AGREEMENT

THIS AGREEMENT effective as of the _____ day of _________________, 2014, by and between__________________________________________________________ for itself and on behalf of its subsidiaries and affiliates(hereinafter referred to as Organization) and LEHIGH UNIVERSITY, (hereinafter referred to as University), is for the

purpose of establishing the participation of the Organization in the Energy Liaison Program (ELP) of Lehigh University.

WITNESSETH:

WHEREAS, the activities contemplated by this Agreement are of mutual interest and benefit to University and toOrganization, 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 derive benefits for both Organization and University through inventionsimprovements, and/or discoveries;

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the parties heretointending to be legally bound, agree to the following:

Article 1 DefinitionsAs used herein, the following terms shall have the following meanings:

1.1 Services shall mean the work to be performed under this Agreement, such as consultation by Lehigh Faculty andprofessional staff on problems of interest to Organization; laboratory services and use of special equipment; speciaprojects and feasibility studies; assistance in development of research projects; literature searches; special seminars and

workshops; receipt of research reports, published papers, pre-published papers, and completed theses consideredpertinent and of interest to Organization; and attendance at regular on-campus Energy Seminars.

1.2 Contract Period is for one (1) year, effective through .1.3 ELP Coordinator shall mean the individual(s) identified by Organization to be responsible for Organizations interest

in the ELP.1.4 Annual Membership Fee is twenty-thousand dollars ($20,000.00 USD) for the Contract Period.Article 2 Scope of Work2.1 Organization will be provided with professional consulting and other Services, not to exceed the value of the Annua

Membership Fee, to perform the Services requested by Organization. It is agreed that the specific services to berendered to Organization and the frequency of such University/Organization interactions will be designed to best meetthe needs of the Organization. These interactions will normally be of short duration, the frequency and extent of whichwill be determined by mutual agreement between Organizations ELP Coordinator and University.

2.2 The complete listing of benefits is attached as Attachment 1.

Article 3 Reports3.1 University shall provide Interaction Reports to Organization upon the completion of the requested services. The

Interaction Reports shall be in a format requested by Organization and contain sufficient detail for Organization toreplicate any processes or recommendations made by University.

Article 4 Costs and Billings4.1 It is agreed to and understood by the parties hereto that, subject to Articles 2 and 5, total costs to Organization for the

Services hereunder shall not exceed the sum of twenty-thousand dollars ($20,000.00 USD), the Annual MembershipFee, without prior written approval from Organization. Payment shall be made by Organization by means of oneannual payment, payable in advance, unless Organization requests University to invoice by means of quarterly annua

payments, payable in advance. Professional Consulting shall be billed on an hourly basis, at the fully-burdened laborrate associated with the specific individual(s) performing the Services. Direct Expenses (such as travel expenseequipment usage fees, and laboratory supplies) incurred under this Agreement will be billed at actual cost plus a 12.5%Lehigh University Administrative Fee. At the end of this Contract Period, any remaining balance in the AnnuaMembership Fee can be credited to Services, with the provision that the credited amount be used within the first ninety(90) days of the new Contract Period. A quarterly Statement of Account shall be provided to Organization.

4.2 Invoices for the payments listed above shall be directed to:


2/5

2

4.3 Anything herein to the contrary notwithstanding, in the event of early termination of this Agreement by either party,Organization shall pay all costs, on a pro rata basis, incurred by University through and including the date oftermination, and Organization shall continue to be liable for all amounts payable under agreements related to theServices entered into by University prior to receipt by University of notice of termination.

Article 5 Terms and Termination

5.1 This Agreement shall become effective upon the date first hereinabove written and shall continue in effect for the fulduration of the Contract Period unless terminated earlier in accordance with the provisions of this Article. The partieshereto may however, extend the terms of this Agreement for additional periods as desired under mutually agreeableterms and conditions which parties reduce to writing and sign. Either party may terminate this Agreement upon thirty(30) days prior written notice to other party.

5.2 In the event that either party hereto shall commit any breach of or default in any of the terms or conditions of thisAgreement, and also shall fail to remedy such default or breach within thirty (30) days after receipt of written noticethereof from the other party hereto, the party giving notice may, at its option and in addition to any other remedieswhich 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.5.3 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.

Article 6 DISCLAIMER OF WARRANTIES; INDEMNIFICATION6.1 ANY AND ALL INFORMATION, MATERIALS, SERVICES, INTELLECTUAL PROPERTY OR OTHER

PROPERTY RIGHTS GRANTED OR PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN ASIS BASIS. NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO

ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES WITH RESPECT TOTHE CONDUCT, COMPLETION, SUCCESS, PARTICULAR RESULTS OF THE PROJECT OR ANYDELIVERABLES HEREUNDER, OR THE CONDITION, OWNERSHIP, MERCHANTABILITY, OR FITNESSFOR A PARTICULAR PURPOSE OF THE PROJECT OR ANY DELIVERABLES. NEITHER PARTY MAKESANY WARRANTY OF ANY KIND WITH RESPECT TO FREEDOM FROM PATENT, TRADEMARKCOPYRIGHT OR TRADE SECRET INFRINGEMENT AND DOES NOT ASSUME ANY LIABILITY FOR ANYSUCH INFRINGEMENT ARISING FROM THE USE OF THE DELIVERABLES OR RIGHTS GRANTED ORPROVIDED HEREUNDER. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIALPUNITIVE OR OTHER DAMAGES. UNIVERSITY SHALL NOT BE LIABLE FOR DAMAGES TO ANY OTHERPERSON RESULTING FROM THE PROJECT OR THE USE OF ANY DELIVERABLES. THE PARTIES AGREETHAT THEY SHALL NOT MAKE ANY WARRANTY ON BEHALF OF THE OTHER PARTY, EXPRESS ORIMPLIED, TO ANY PERSON CONCERNING THE APPLICATION OF OR THE RESULTS TO BE OBTAINEDUNDER THE PROJECT OR ANY DELIVERABLES THEREUNDER.

6.2 Organization shall defend, indemnify and hold harmless University, and any of Universitys faculty, studentsemployees, trustees, officers, subsidiaries, affiliates and agents (collectively, the Indemnified Persons) from andagainst any and all liability, claims, lawsuits, losses, damages, costs or expenses including without limitationreasonable attorneys fees, which the Indemnified Persons may hereafter incur or be required to pay, arising out of or inconnection with (a) Organizations use of the results of the Services, or (b) any breach of this Agreement byOrganization, or (c) any act or omission of Organization, its employees, subsidiaries, affiliates, contractors, licensees oragents. This indemnification shall not apply to liability, claims, lawsuits, losses, damages, costs or expenses to theextent arising out of the negligent act or omission of any Indemnified Person in connection with this Agreement.University shall notify Organization upon learning of the institution or threatened institution of any such liabilityclaim, law suits, loss, damage, cost or expense, and University shall reasonably cooperate with Organization in thedefense or settlement thereof at Organizations request and expense.

6.3 University shall defend, indemnify and hold harmless Organization, and any of Organizations directors, employees

officers, subsidiaries, affiliates and agents (collectively, the Indemnified Persons) from and against any and allliability, claims, lawsuits, losses, damages, costs or expenses including without limitation reasonable attorneys fees,which the Indemnified Persons may hereafter incur or be required to pay, arising out of or in connection with (a) any

breach of this Agreement by University, or (b) any negligent act or omission of University, its faculty, studentsemployees, subsidiaries, affiliates, contractors, licensees or agents. This indemnification shall not apply to liabilityclaims, lawsuits, losses, damages, costs or expenses to the extent arising out of the negligent act or omission of anyIndemnified Person in connection with this Agreement. Organization shall notify University upon learning of theinstitution or threatened institution of any such liability, claim, law suits, loss, damage, cost or expense, andOrganization shall reasonably cooperate with University in the defense or settlement thereof at Universitys request andexpense.


3/5

3

Article 7 Independent Contractor7.1 In the performance of all Services hereunder:

7.1.1 University shall be deemed to be and shall be an independent contractor and, as such, University shall not beentitled to any benefits applicable to employees of Organization.

7.1.2 Neither party is authorized or empowered to act as agent for the other for any purpose and shall not on behalof the other enter into any contract warranty, or representation as to any matter. Neither shall be bound by theacts nor the conduct of the other.

Article 8 Insurance

8.1 Each party warrants and represents that it has adequate liability insurance, such protection being applicable to itsofficers, employees, and agents while acting within the scope of their employment.

Article 9 Confidential and Proprietary Information9.1 Organization may identify certain information relating to its technology, research plans and business as confidential or

proprietary in discussions with University. University agrees not to disclose such confidential or proprietaryinformation to any third party. University agrees to use such confidential or proprietary information only in the mannerauthorized by Organization and solely for Organizations benefit. This obligation shall apply both to information thais transmitted in writing or other tangible form that is clearly and conspicuously marked as Confidential orProprietary and to information which, if first transmitted orally, is designated as confidential or proprietary at thetime of disclosure and is promptly confirmed in writing. The above obligation of nondisclosure shall not apply to any

portion of the information which (a) was known to University prior to receipt, (b) is available, or without fault oUniversity, becomes available to the general public, (c) is received by University, from a third party not bound by asimilar obligation of secrecy, or (d) University is or becomes obligated as a result of operation of law, regulation, or

court order to divulge to another, provided University gives Organization at least thirty (30) days notice of suchobligation and identifies the information required to be disclosed.

9.2 University may identify certain information relating to its technology, research plans and business as confidential orproprietary in discussions with Organization. Organization agrees not to disclose such confidential or proprietaryinformation to any third party. This obligation shall apply both to information that is transmitted in writing or othetangible form and to information which, if first transmitted orally, is promptly confirmed in writing and designated as

proprietary. The above obligation of nondisclosure shall not apply to any portion of the information which (a) wasprobably known to Organization prior to receipt, (b) is available, or without fault of Organization, becomes available tothe general public, (c) is received by Organization, from a third party not bound by a similar obligation of secrecy, or(d) Organization is or becomes obligated as a result of operation of law, regulation, or court order to divulge to another

provided Organization gives University at least thirty (30) days notice of such obligation and identifies the informationrequired to be disclosed.

9.3 The University shall have the right to present at symposia, national or regional professional meetings, and to publishresults from the rendering of Services in the open literature, subject to the approval of the Organization, providedhowever, that the Organization shall have been furnished copies of any proposed publication or presentation at leastone (1) month in advance of the submission of such proposed publication or presentation to a journal, editor or otherthird party. Organization shall have one (1) month, after receipt of said copies, to object to such proposed presentationor proposed publication because there are trade secrets, confidential or proprietary information, or patentable subjectmatter which need protection.

Article 10 Inventions, Patents and Intellectual Property10.1 Title to any software, inventions or discovery made solely by University pursuant to the rendering of Services under

this Agreement shall belong to University, which shall have the sole right to determine the disposition of any patents orother rights resulting therefrom, provided, however, that the University shall grant and hereby grants to Organization,its parent and affiliates a royalty-free nonexclusive worldwide license, with the right to grant sublicenses, for the use ofsaid software, invention, or discovery, including all documentation therefor. Such license shall be documented in alicense agreement including typical University technology transfer terms including, but not limited to, indemnificationof the University, disclaimer of warranties, termination for breach, and a provision for the equal sharing of allsublicensing revenues. University shall provide Organization with the first option to negotiate to obtain an exclusivelicense under said software, invention or discovery. Such first option to negotiate to obtain an exclusive license shalextend for a period of one hundred twenty (120) days following Universitys disclosure to Organization of saidsoftware, invention, or discovery.

10.2 Title to any software, inventions or discovery made jointly by University and Organization and related to the Servicesor otherwise arising as a result of this Agreement shall jointly belong to Organization and the University. The partieshall negotiate in good faith to reach agreement on the filing, prosecution, and maintenance of patents, the payment of


4/5

4

costs therefor, and the terms of licensing such jointly-owned software, inventions, or discovery to Organization (in theevent that Organization wishes to license Universitys ownership interest in order to obtain an exclusive license) or athird party and sharing of revenues therefrom.

10.3 The owner of a patent covered by Section 10.1 or 10.2 shall be responsible for preparing, filing, prosecutingmaintaining and enforcing any patents covering software, inventions or discoveries. In the event that the patent owneris unable or unwilling to pay the costs associated with such patents, then on a country-by-country basis, the patentowner shall assign its entire interest in any such patent to the other party.

Article 11 Governing Law

11.1 This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvaniawithout regard to any conflict of laws principles.

Article 12 Assignment12.1 This Agreement shall not be assigned by either party without the prior written consent of the parties hereto.

Article 13 Agreement Modification13.1 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 14 Arbitration14.1 In the event of any controversy or claim arising out of or relating to any provision of this Agreement or breach thereof

the parties shall try to settle such conflicts amicably between themselves any such conflict which the parties are unableto resolve shall be settled in accordance with the Expedited Rules of the American Arbitration Association with the

provision that any issues pertaining to patent validity shall be determined in a court of competent jurisdiction. The

award or decision shall be rendered by a majority of a Board of Arbitration consisting of three members, one of whomshall be appointed by University, one of whom shall be appointed by Organization and the third of whom shall be thechairman of the panel and be appointed by mutual agreement of said two party-appointed arbitrators; wherein at leastone of the arbitrators shall be a registered US patent attorney. Such arbitration proceedings shall be conducted inPhiladelphia, Pennsylvania. The award through arbitration shall be binding.

Article 15 Notices15.1 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 addressgiven below, or such other address as may hereafter be designated by notice in writing:

If to Organization: If to University:

LEHIGH UNIVERSITY

Energy Research CenterAttn: Mr. Vincent MagnottaEnergy Liaison Program Director117 ATLSS DriveBethlehem, PA 18015-4729

IN WITNESS WHEREOF the parties have caused these presents to be executed in duplicate as of the day and year firstabove written.

ORGANIZATION LEHIGH UNIVERSITY

By: By:Dr. Carlos Romero

Title: Title: Director, Energy Research Center

Date: Date: March 17, 2014

Attached hereto and incorporated by reference: Attachment 1


5/5

5

Vincent MagnottaDirector, Energy Liaison Program

Energy Research CenterLehigh University117 ATLSS DriveBethlehem, PA 18015

Telephone: (610) 758-4545Fax: (610) 758-5959

E-mail: [email protected]

ATTACHMENT 1

ENERGY LIAISON PROGRAM

Notes:1Interactions are services within the scope of the allowance2$1,500 per participant (typical cost for a three-day course)

3$300 per participant

ANNUAL COST $20,000BENEFIT

Allowance Included $20,000Reduced Consulting Labor RatesRapid Turnaround for "Interactions" 1 yesInstrumentation and Equipment Rates 50% ofPreferred Access to ERC Faculty and Engineers yesRights to Inventions prenegotiatedConfidentiality prenegotiatedAttendance at Short Course2 20% offAttendance at Annual Research Review Meeting3 up to 5 freeTopical Workshops no chargeSpecial Projects/Sponsored Research Opportunities availableIndustrial Consortia Opportunities availableLehigh Energy Update Publication yesRECRUITINGAccess to Graduate Students yes

INTELLECTUAL PROPERTY

SERVICES AND EQUIPMENT USAGE

COURSES, WORKSHOPS, MEETINGS

FOLLOW-ON RESEARCH OPPORTUNITIES

INFORMATION DISTRIBUTION

20% off

lehigh energy resource center: elp membership agreement

Documents